85 S.E. 905 (S.C. 1915), 9138, Pieper v. Shahid

Docket Nº:9138.
Citation:85 S.E. 905, 101 S.C. 364
Opinion Judge:WATTS, J. FRASER, J.
Party Name:PIEPER v. SHAHID.
Attorney:Huger, Wilbur & Guerard, of Charleston, for appellant. Hagood & Rivers, of Charleston, for respondent.
Case Date:July 21, 1915
Court:Supreme Court of South Carolina
 
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Page 905

85 S.E. 905 (S.C. 1915)

101 S.C. 364

PIEPER

v.

SHAHID.

No. 9138.

Supreme Court of South Carolina

July 21, 1915

Appeal from Common Pleas Circuit Court of Charleston County; Frank B. Gary, Judge.

Action by W. H. Pieper, as guardian ad litem of Violet A. Pieper, against Joseph Shahid. From an order overruling his demurrer to the complaint, defendant appeals. Reversed and remanded.

Gary, C.J., and Fraser, J., dissenting.

Huger, Wilbur & Guerard, of Charleston, for appellant.

Hagood & Rivers, of Charleston, for respondent.

WATTS, J.

This was an action for damages for personal injuries commenced by service of a summons and complaint, and attachment of an automobile under the law in such cases made and provided. After service of summons and complaint, defendant's attorney filed a demurrer thereto on the ground that it did not state facts to constitute a cause of action, in that it does not appear on the face of the complaint that plaintiff suffered any damages by reason of the acts of negligence alleged in the complaint. Upon the hearing of the demurrer, the circuit judge overruled the same, and defendant appealed.

The contention of the defendant in substance being that the title of the cause, instead of being W. H. Pieper as guardian ad litem for Violet A. Pieper, should have been Violet A. Pieper by her guardian ad litem W. H. Pieper, and because of this difference in form, notwithstanding the fact that the body of the complaint clearly shows in what capacity W. H. Pieper is connected with the suit, and also shows that Violet A. Pieper was the party injured, and because of difference in form of title of the cause, the substance set out in the complaint must be overlooked, and demurrer sustained and complaint dismissed.

We are of opinion that the exceptions must be sustained. As was said in McCreight & McCreight v. Aiken, 3 Hill, 338:

"The legal relation of a committee to a lunatic is analogous to that of a guardian to his ward. For any trespass to the person or property of a minor, an action must be brought in his name by his guardians, and why should not an action be brought in the same way for a trespass on the person or property of a lunatic?[101 S.C. 366]"

"It seems to be settled in South Carolina that in an action at law for the recovery of the property of a lunatic, or damages for its detention, the action must...

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