Stewart v. City Council of Charleston

• Decision Date: 19 April 1926
• Docket Number: 11963.
• Citation: 132 S.E. 678,134 S.C. 398
• Parties: STEWART v. CITY COUNCIL OF CHARLESTON.
• Court: South Carolina Supreme Court

132 S.E. 678

134 S.C. 398

STEWART v. CITY COUNCIL OF CHARLESTON.

No. 11963.

Supreme Court of South Carolina

April 19, 1926

Appeal from Circuit Court of Charleston County; R. W. Memminger Judge.

Action by Frederick C. Stewart against the City Council of Charleston. From an order overruling a demurrer to the complaint, defendant appeals. Reversed.

Gary C.J., dissenting.

John I Cosgrove, of Charleston, for appellant.

Lionel K. Legge, of Charleston, for respondent.

STABLER J.

This is an appeal from an order of his honor, Judge Memminger, overruling a demurrer to the complaint. The plaintiff, who was an employee of the city of Charleston, brought this action against the city for injuries alleged to have been received by him while working at the bottom of an excavation in the roadway of one of the streets of the city, by the caving in of the sides of the excavation upon him.

The complaint states, in part:

"That on or about the 24th day of February, 1924, the plaintiff was in the employ of the defendant as a laborer, and, in the course of his said employment and acting under the instructions and directions of the said defendant and its superintendent and representative in charge of certain excavation work then being done by and under the management and control of the said defendant on Queen street, one of the public streets of the city of Charleston, the said plaintiff was working at the bottom of an excavation about nine feet deep in the roadway of Queen street aforesaid, at or near its intersection with Meeting street, another public street of the said city of Charleston; that while the plaintiff was at his work, at the time and place aforesaid, suddenly and without warning the side of the said excavation caved in and fell upon the plaintiff, who was working at the bottom thereof, causing the plaintiff's nose to be broken and his forehead and face horribly mangled and mutilated, so that the plaintiff was made sick and ill and suffered, and continues to suffer, great physical and mental pain and anguish, and was permanently scarred, maimed, and mutilated; that the said injuries to the plaintiff were caused by defects in the said street and by the negligence and mismanagement of the said defendant in the following particulars, to wit: (a) In failing to provide the plaintiff with a safe place in which to do his work on the said public street. (b) In failing to provide proper shoring or other safeguards in and about the said excavation on Queen street to prevent the sides of the said excavation from caving in. (c) In causing and requiring the said plaintiff to work at the bottom of said excavation, although the said defendant and its representative on the spot knew, or by exercise of reasonable care should have known, that the said excavation was defective and unsafe; the plaintiff having no knowledge of the unsafe character of the said excavation nor any control over the same and relying upon the duty of the said defendant to furnish him with a reasonably safe place to work."

The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, "and that no liability has been created by statute under the facts stated in said complaint." The circuit court overruled the demurrer, and the defendant appeals. The exceptions raise but a single question: Under the statute, do the allegations of the complaint state a cause of action against the city of Charleston?

It is well-settled law in this state that municipal corporations are not liable in tort except as provided by statute. Section 4478 of the Code of Laws of 1922, under which this action was brought,...