Abernathy v. City Of Olumbia, 16105.
| Decision Date | 13 July 1948 |
| Docket Number | No. 16105.,16105. |
| Citation | 48 S.E.2d 585 |
| Parties | ABERNATHY et al. v. CITY OF OLUMBIA. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Richland County; G. Duncan Bellinger, Judge.
Action by Thomas W. Abernathy, as administrator of the estate of Grover C. Abernathy, deceased, and others, against the City of. Columbia for death of plaintiff's decedent. From the judgment, plaintiff appeals.
Affirmed.
N. A. Theodore, H. H. Edens, A. F. Spigner, Jr., C. T. Graydon and John Grimball, all of Columbia, for appellants.
Paul A. Cooper, John W. Sholenberger, and Edward W. Mullins, all of Columbia, for respondent.
Demurrer was sustained to the complaint in this action upon the general ground that it fails to state a cause of action for damages against the defendant City of Columbia. Appeal followed. Plaintiff's intestate was engaged in his trade in what iscalled the Columbia Curb Market in Assembly Street when he was killed by an explosion in the nearby place of one Wessells in the Market. Wessells occupied a building in the market place, formerly the center of the street, under license from the City, wherein he ripened fruit, principally bananas, by use of a dangerous gas, which, it is alleged, was ignited by a spark from some electrical appliance in use in the building, with the resultant explosion which destroyed the building, killed Wessells and several others, including plaintiff's intestate. It is argued here (and was in the trial court) that the building containing the dangerous gas, or the gas itself, was a defect in the street.
It is axiomatic in this jurisdiction that a municipality is a subdivision of the sovereignty of the State and enjoys the immunity of the latter from suit for tort except as provided by statute. That relied on here is Sec. 7345 of the Code of 1942 and the presently controlling portion of it is as follows: "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 of defect or mismanagement of anything 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." The clause enclosed by the added parentheses may be omitted from consideration for it is irrelevant under the decisions including Reeves v. City of Easley, 167 S.C. 231, 166 S.E. 120, which established that the thing there referred to as under control of the municipality must be something in use in connection with the obligation to maintain the streets in reasonable repair. Thus the present question is whether the fatal explosion resulted from a defect in Assembly Street, or more particularly whether the explosive gas, the building containing it or the manner of handling it may be held to have been a defect in the street, within the contemplation of the statute.
It was agreed by counsel in oral argument of the appeal that the State (to be the capital of which Columbia was created) owns the land which comprises Assembly Street, so the history of this unusual situation need not be cited. It is unimportant in this litigation anyway. The General Assembly by Act No. 277 of March 29, 1919, 31 Stat. 588, expressly granted the right to the city to erect in the center of certain portions of Assembly Street a "Market, a City Hall and such other public buildings as are necessary for corporate purposes, provided that sufficient driveways are left on each side of said buildings as will adequately take care of the traffic on said street." By Act No. 1257 of March 17, 1938, 40 Stat. 2732, the General Assembly granted a similar right with respect to an additional portion of Assembly Street for the erection of "a municipal market, a municipal market shed, and such other public buildings as deemed necessary for corporate purposes", with the same proviso as was contained in the Act of 1919, just quoted. The last such legislative act called to our attention is No. 223 of April 24, 1943, 43 Stat. 477, which granted similar right to the city with respect to a certain portion of Senate Street beginning at its intersection with Assembly, with the same proviso. The area described in these Acts falls just short of Wessells' location. His building was across the street intersection beyond the southern terminus of the area embraced in Act No. 1257 of 1938, 40 Stat. 2732. It ends at Pendleton Street, whereas the location is across the intersection of Pendleton and Assembly Streets.
However, under its statutory charter, the City of Columbia is authorized "to make all ordinances, rules and regulations relative to the streets and markets of the said city as they may think proper and necessary * * *" Act No. 4187, approved Dec. 21, 1854, 12 Stat. 293, Sec. 6, p. 294. The charter was amended by Act No. 343, approved March 2, 1871, 14 Stat. 569, which granted further authority with respect to the streets by empowering the mayor and aldermen as follows: "(They) are invested with all the powers of County Commissioners, or Commissioners of Roads, for and within the corporate limits of the City; and they may lay out new streets, close up,
widen or further alter those now in use * * *" It is gathered from the complaint and is a matter of common knowledge, of which the Court may properly take judicial notice, that the authorities of the City have permitted the erection and operation of Markets for the sale of produce in the center portion of Assembly Street, including Wessells' location. The Market buildings and activities exclude the former portion of Assembly Street which they occupy from use for travel. The latter is had on both sides of the Market which is made possible by the original extraordinary width of Assembly Street. The former street area which was converted to the purposes of the Market is no longer a portion of the street in which an actionable defect may exist within the purview of Sec. 7345. The market area is no more a part of a street than is the City Hall, adjacent to a street; and it is patent that a negligently caused explosion within the City Hall, with resulting injury to a passerby on the street, would not give rise to a cause of action under the statute. Equally convincing is the supposition that Wessells' place was on private property adjacent to the street where plaintiff's intestate was engaged; the explosion would have as certainly killed him. The supposition may be carried one step further. Suppose the Market area were privately owned and never a part of Assembly Street, with the parallel traveled portions constituting streets separated by the privately owned market, it would hardly be contended that the City should be held liable for the results of an explosion on private property. It is not the unfortunate result which controls, but the fact that the cause was not a defect in the street within the reasonable meaning of that term of the statute.
It is alleged in the complaint that the death of plaintiff's intestate, quoting, "was due to, caused by, and was a direct and proximate result and (of?) the negligent, wilful and wanton acts and behavior on the part of the defendant City of Columbia, more particularly through its Fire Department, the Bureau of Fire Prevention and its Market managers in the following particulars, to wit: " And here follow the specifications:
"(a) In not inspecting the premises rented by Nolan W. Wessells on the Columbia Curb Market and discovering and eliminating the dangerous hazard from explosions that he was keeping there by the improper use of a highly explosive gas and thereby causing, creating and permitting a dangerous defect to exist in Assembly Street that the City of Columbia, through its agents, knew or should have known would probably injure the life and limb of persons lawfully using that street."
"(b) In not properly instructing Nolan W. Wessells in the safe and proper use of the dangerous gas that he was permitted to use to ripen his produce and thereby causing, creating and permitting a dangerous defect to exist in Assembly Street" (remainder same as in (a) above.)
"(c) In allowing Nolan W. Wessells to use this dangerous gas at all to ripen his produce when they knew or should have known that its use would create a dangerous hazard to all persons in the vicinity of his place of business and thereby causing, creating and permitting a dangerous defect to exist in Assembly Street" (remainder same as in (a) above.)
"(d) In not preventing Nolan W. Wessells from using this dangerous gas in a dangerous manner when they knew, or could have known upon the slighest inquiry, what his dangerous practices were and thereby causing, creating and permitting a dangerous defect to exist in Assembly Street" (remainder same as in (a) above.)
"(e) In not placing or causing to be placed signs on the building in which Nolan W. Wessells was using this dangerous gas and creating this dangerous hazard to warn the public and people in the vicinity of the dangerous hazard created by the methods that they permitted him to use in curing of fruit and thereby causing, creating and permitting a dangerous defect to exist in Assembly Street" (remainder same as in (a) above.)
"(f) In allowing Nolan W. Wessells to use electric fans and electric switches and appliances in his ripening chambers that the Columbia Fire Department, the Bureau of Fire Prevention and the Market man-agers knew or should have known were capable of creating electric sparks that would cause the dangerous, combustible, explosive gas that they permitted Nolan W. Wessells to use to explode and injure any persons or property in the vicinity and thereby causing, creating and permitting a dangerous defect to exist in Assembly Street" (remainder same as in (a) above.)
"(g) In allowing to exist over a long period of time, when they knew and could have known and should have known such to exist a dangerous...
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