October 23, 1934. The opinion of the Court was delivered by This action was brought by the appellant as administratrix to recover damages for the alleged wrongful death of her husband, John Melvin Jackson. The case was tried by Judge Townsend in the Court of Common Pleas for Richland County. At the close of the testimony, a motion for nonsuit was made by counsel for appellant, and granted, on the ground that there was no proof of actionable negligence on the part of the city, and on the ground that the vehicle on the street, which it is alleged caused the injuries complained of, which is alleged to have been a street-cleaning vehicle, was not being used in connection with the repairs of the street, or in connection with any defect in the street.
The appeal is from the order granting the nonsuit.
It appears from the complaint that on the day named the deceased. John Melvin Jackson, was, about the hour of 12 o'clock, midnight, going north on Main street in the City of Columbia: that at that time the employees of the city were using a truck on Main Street, which the city was accustomed to use to keep the streets in repair and condition, and for the purpose of picking up trash, garbage, and other refuse on the streets; that the truck was parked, on the night in question, in the street with the motor running, with no lights in the back, in violation of the city ordinances thereabout, with no proper guard, forming an obstruction and dangerous instrumentality, which made the street dangerous and unsafe for normal use and travel; that at the time and place the streets were "improperly lighted and improperly darkened"; that, as decedent was proceeding along Main Street, the car *Page 210 in which he was riding struck the unlighted and unguarded truck, and he suffered injuries from which he died; that his injuries were due to the negligence, willfulness, recklessness, and wantonness of the defendant, its agents and servants, in the following particulars:
Parking the large and cumbersome truck on a public street and in a dangerous position, and in violation of the law of the City of Columbia; allowing it to be parked with the engine running without any person in or about it; in failing to have it lighted as required by statute law and the ordinance of the city; in failing to have the street properly lighted at the time and place; in failing to have a man in and about the truck to guard it and to warn people approaching it; in allowing the truck to be parked in the middle of the street so as to be a danger and menace to persons lawfully using the street.
The answer, save as to the merely formal parts of the complaint, was a general denial; with the further plea of the defense that plaintiff's intestate contributed to his own death as a proximate cause thereof, without which it would not have occurred, by his own negligence, or that of the driver of the car, with whom he was driving on a joint enterprise, or who was acting as his agent, by failing to keep any lookout whatever.
The action is alleged to be brought under Lord Campbell's Act. An action of the nature of this one cannot be maintained against a municipal corporation, which is an integral part of the sovereignty of the state, unless there be express statutory provision therefor. This right of action was given by the Act of 1892, Vol. 21, St. at Large, p. 91, which is now embraced in the Code of Laws of 1932 as Section 7345; the pertinent provisions of that Act are as follows, including the title:
"An Act Providing for a Right of Action Against a Municipal Corporation for Damages Sustained by Reason *Page 211 of Defects in the Repair of Streets, Sidewalks and Bridges Within the Limits of Such Municipal Corporation.
"Section 1. Be it enacted by the Senate and House of Representatives of the State of South Carolina, now met and sitting in General Assembly, and by the authority of the same, That any person who shall receive bodily injury, or damages in his person or property, through a defect in any street, causeway, bridge or public way, or by reason or defect or mismanagement of any thing under control of the corporation within the limits of any town or city, may recover, in an action against the same, the amount of actual damages sustained by him by reason thereof."
This Act received its first interpretation in the case ofDunn v. Town of Barnwell, 43 S.C. 398, 21 S.E., 315,316, 49 Am. St. Rep., 843, in which the opinion was written by Mr. Chief Justice McIver. The principle was therein laid down that the purpose of the Act was to give a right of action for injuries received in consequence "`of defects in the repair of streets, sidewalks and bridges.' * * * The term `mismanagement,' as used in a previous part of the Act, meant mismanagement in making repairs on the streets, so that the corporation should be held liable, not only for neglect in making the repairs on the street, but also for mismanagement of anything under the control of the corporation in making such repairs."
In the year following the rendition of this opinion, a strong line of cases followed in which the opinion in theDunn case was adhered to; but another line also followed which gave the statute a broader construction.
In the case of Reeves v. City of Easley, 167 S.C. 231,166 S.E., 120, 121, all of the cases on both lines of the subject were reviewed, and the principle laid down in theDunn case was approved by the unanimous opinion of this Court. The Court said: "When a statute gives a right of action against the state, county, or city, or other subdivision of the sovereign authority, it is the rule of the law that such *Page 212 statute must be strictly construed. `This Court has held that an * * * Act * * * in derogation of the sovereign power of the state, must be strictly construed.' Ancrumv. State Highway Department, 162 S.C. 507,161 S.E., 98, 99."
This Court reaffirmed the rule of the Dunn case that, in order to recover for injuries received from the mismanagement of some instrumentality under the control of a municipal corporation, the instrumentality must be then used in repairing a defect in the streets of the municipality.
What is the evidence offered by plaintiff to show that the truck in this case was being used in repairing the street?
It is alleged that the truck was used "for the purpose of picking up trash, garbage and other refuse on the streets of Columbia." (Complaint folio 4 of the Record.) That the truck was left parked in the street unlighted and unguarded. It appears that plaintiff's intestate was riding in the car of Mr. Pendergrass, which the latter was driving. Mr. Pendergrass, for plaintiff, testified: "That a man came up (Mr. Street). He said it was a city truck and I asked him what it was doing being left in the middle of the street and he said he had just gone over to the hydrant to flush the ditch, or gutter. He said he had left the motor running just a minute until he could go over and open the hydrant to flush the gutter. He said it was a city truck cleaning up the street garbage and debris."
On cross-examination this witness said: "He (Mr. Street) came up just a few minutes after the accident; and told me he had stepped across the street to open the hydrant; to flush the street; to clean up debris on the street."
Mr. Porter, witness for plaintiff, testified: Was formerly city engineer; the truck was used for taking up garbage and debris out of the gutter; to keep the streets clean and remove the garbage. The witness was asked: *Page 213
"Q. For what purpose were these trucks used — I mean for what purpose was the garbage and stuff removed from the streets? A. Well, the garbage for sanitary reasons and the boxes and debris for safety.
"Q. For safety of who? A. For anybody — vehicles and pedestrians or anyone. * * *
"Q. What effect would it be on the streets if they were not kept clean in that particular? A. Well, if they stood for any length of time the streets would be cluttered up.
"Q. Would it be possible to use them with safety? A. Well, that is problematical — I wouldn't say.
"Q. You wouldn't say it wouldn't be? A. No, sir."
On cross-examination this witness said he was not at the place of the collision that night, and does not know whether "there was any debris particularly on the streets that night." He testified to the custom of the trucks when he was city engineer and in charge of this department to pick up boxes and barrels in which the trash swept up out of stores was placed and any debris the people have thrown out.
"Q. So, when you were there the purpose of these night trucks that went down Main Street was to pick up the boxes or barrels or garbage or trash that the merchants would put out there, and take it and put it into the top of the wagon and also to take the trash that might have blown out of these farrels or boxes? A. That's true."
There is not in the record one word of evidence that on the night in question there were any boxes or barrels or trash or debris which made the street unsafe for proper use or a menace to any one. There is not a syllable of testimony to show that there was a defect in the street which the truck was engaged in repairing. Its use is shown by plaintiff's own witness to be the nightly one of keeping the streets clean and sanitary, and it was then so engaged.
That this is not such use as to make "mismanagement" of the truck ground for action within the purview of the *Page 214 statute is shown by the case of Davis v. City of Greenville,168 S.C. 476, 167 S.E., 682, 683.
That was an action for damages for injuries alleged to have been suffered by the boy who was struck by a large volume of water which was emitted from a motor-drawn flusher, the property of the city, while engaged in washing off the street. There it was said: "It is needless to rehearse all that was said in the case of Reeves, supra; it is sufficient to say that that case lays down the rule that, in order to hold a municipality liable under the provisions of the Act relating to the mismanagement of anything under the control of the municipality, it must be alleged and proved that the instrumentality was then being used in repairing the streets."
From the same case we quote:
"Webster's New International Dictionary gives this definition of `repair': `To restore to a sound or good state after decay, injury, delapidation, or partial destruction; as to repair a house, a road, a shoe.'
"This is the ordinary common-sense meaning of the word, and it is only fair to the lawmakers to credit them with the intention to give it that meaning when they enacted the law. In short, the relation in which it is used in the context can leave no doubt that it was so intended."
Black's Law Dictionary (3d Ed.), p. 1531, gives the same definition of the word "repair" as is given from Webster above, and also the following: "The word `repair' contemplates an existing structure or thing which has become imperfect, and means to supply in the original existing structure that which is lost or destroyed, and thereby to restore it to the condition in which it originally existed as near as may be." Citing authorities.
The appeal is dismissed, and the judgment of the lower Court is affirmed.
MR. JUSTICE STABLER and MESSRS. ACTING ASSOCIATE JUSTICES EUGENE S. BLEASE and W.C. COTHRAN concur.
MR. JUSTICE CARTER dissents. *Page 215