(dissenting) :
I am not in accord with the majority opinion in this case and feel compelled to dissent.
This wrongful death action was instituted by Ralph C. Truesdale and Bertha Truesdale, as administrators of the estate of Kimberly Ann Truesdale, the respondents herein, against the South Carolina Highway Department, the appellant herein, and one Sara Lynn Young. The respondents allege that on November 11, 1971, Kimberly Ann Truesdale, their nine year old daughter, was fatally injured as she was crossing a state highway in front of a truck of the appellant which was unlawfully parked in the traveled portion of the highway. They further allege that her injuries and death were the result of the acts and delicts or negligence on the part of the appellant in that its truck was unlawfully parked so as to block the view of the deceased and that of Sara Lynn Young, a motorist traveling along the highway, whose automobile struck the deceased as it was passing the parked truck of the appellant.
It is significant to note that the only allegation of negligence by the respondents against the appellant was unlawful parking. The first amended complaint of the respondents did, however, contain allegations that the action was being *237brought against the appellant by and under Sections 10-2623 and 10-2624 of the Code, as amended. The appellant in answering the respondents’ complaint alleged as its sixth defense the following:
“That at the time of the accident referred to in the Complaint the truck owned by the Defendant South Carolina Highway Department was not in operation, but parked (as alleged in the Complaint), and thus the infant was not injured by the 'negligent operation’ of a motor vehicle owned by the State of South Carolina as required by Section 10-2623, Code of Laws of South Carolina, as amended, in order to waive the sovereign immunity of the State of South Carolina;”.
At the trial of this case, during the 1973 February Term of the Court of Common Pleas for Kershaw County, before the Honorable Dan F. Laney, Jr., Presiding Judge, it was announced that a covenant not to sue had been entered into between the plaintiffs and the defendant, Sara Lynn Young. Thereafter, the pleadings were amended so as to eliminate Sara Lynn Young as a defendant, and the cause proceeded to trial against the State Highway Department. During the course of the trial, the trial judge ruled as a matter of law, over the objection of the appellant, that defense number six, above quoted, should be stricken from the answer. As a result of this ruling, the respondents were also allowed to amend their first complaint and did so by striking the assertion that the action was being brought under Sections 10-2623 and 10-2624 of the Code, as amended.
It thus becomes apparent to me that the case went to trial on the basis of the alleged negligent acts and delicts of the appellant by the unlawful parking of its truck, and not under the “South Carolina Governmental Motor Vehicle Tort Claims Act,” which is codified as Sections 10-2621 through 10-2625, in the 1973 Cumulative Supplement to the 1962 Code of Laws.
*238The trial of this case resulted in a verdict for the respondents for actual damages. This appeal followed. One of the questions presented is whether the trial judge was in error in striking defense number six from the answer of the State Highway Department and in holding as a matter of law that parking was “operation” within the coverage of Section 10-2623 of the Code, as amended.
The South Carolina Highway Department is an agency of this State and is entitled to immunity as a sovereign body within the State. It is settled law that the State can be used only in the manner and upon the terms and conditions prescribed by statute, and such statutes waiving the State’s immunity from suit, being in derogation of sovereignty, must be strictly construed. Harrison v. S. C. Tax Commission, 261 S. C. 302, 199 S. E. (2d) 763. This case cited with approval the following statement from Brazell v. City of Camden, 238 S. C. 580, 121 S. E. (2d) 221:
“(T)he Courts have refused to hold that the sovereign immunity has been abrogated, abridged, or surrendered, except under plain and positive provisions of the statute.”
In order for the respondents to bring an action against the appellant, it would be necessary that such be brought pursuant to the terms and conditions of a statute in which immunity has been waived. The appellant urges that because the respondents have bottomed their right to a recovery for the unlawful parking of its truck such could not be negligent operation thereof within the purview of the South Carolina Government Motor Vehicle Tort Claims Act. It is further contended that the trial judge erred in holding as a matter of law that parking was operation within the meaning of Sections 10-2623 and 10-2624 of the Code, as amended. Attention is again directed to the motion, which the trial judge granted, striking out from the pleadings the applicability of the aforesaid sections of the Code.
The only delict charged against the appellant is that its truck “was unlawfully parked”. It is true that a standing or *239stopped vehicle, if its mechanism is being engaged, may come within the provisions of the aforesaid statutes. However, it seems illogical to conclude that the General Assembly intended liability on the part of the appellant for vehicles which have been parked, the working mechanism thereof disengaged and not functioning in any manner, and the driver indefinitely absent therefrom.
In the majority opinion reliance is placed on the case of Deese v. Williams, 237 S. C. 560, 118 S. E. (2d) 330. There was a dispute in that case as to whether the truck was standing or moving very slowly at the time of the collision. Recovery was permitted against the appellant under the then Section 33-229 (c) of the Code, which had reference to the negligent operation of a vehicle in the charge of the appellant while such was actually engaged in the construction or repair of any highway. The conclusion was there reached that the truck was actually engaged in the repair of the highway.
The General Assembly, by Act No. 1273, 55 Stats. 3027, approved June 10, 1968, enacted the “South Carolina Governmental Motor Vehicle Tort Claims Act” and by the terms thereof, amended Section 33-229 of the 1962 Code, so as to delete therefrom a suit for negligent operation of a motor vehicle in charge of the appellant. However, under Section 3 of such Act, no;w Section 10-2623, 1974 Cumulative Supplement, recovery is allowed to “any person sustaining an injury by reason of the negligent operation of any motor vehicle while being operated by an emeployee of a governmental entity . .. .”
It is apparent to me that the recovery allowed in the Deese case was pursuant to Sectiop 33-229 (c) of the Code because of the negligent operation of a motor vehicle in charge of the appellant while such vehicle was actually engaged in the repair of a highway. The record in the Deese case reveals that the truck of the appellant was upon the surface of the highway, either moying slowly or standing still, with the mechanism thereof functioning and the opera*240tor at the wheel. The respondents, if entitled to recover damages under the factual situation here revealed, would have to prove that the injury and death of their intestate resulted frojn “the negligent operation of any motor vehicle while being operated by an employee” of the appellant. Section 10-2623 of the Code.
In my opinion, the immunity of the State from suit under Section 10-2623 of the Code, as amended, is waived only when a motor vehicle caused injury or death “while being operated”. Where the language of the statute is clear and concise, full significance must be accorded its expressed terms. The explicit terms of this statute clearly limit recovery to only such negligent operation that takes place during the time that the mechanism of a vehicle is being made to function. It follows that the phrase “while being operated” cannot apply to a parked vehicle.
From 60 C. J. S. Motor Vehicles § 6(2), at page 160, we quote the following:
“Ordinarily the word ‘operation,’ when used in relation to motor vehicles, refers to the physical act of working the mechanism of the vehicle; the actual physical driving and handling of the mo¡tor vehicle; the manipulation of the controls of a car in order to move it as a vehicle; but it is not limited to the movement of the car alone, and includes such stops as motqr vehicles ordinarily make in the course of their operation.”
It is my conclusion that the respondents are not entitled to recover damages under Section 10-2623 of the Code, as amended, because this statute do.es not apply to a parked vehicle.
For- the foregoing reasons I think the judgment of the lower court should be reversed and the case remanded for entry of judgment in favor of the appellant.
Littlejohn, J., concurs.