Alderman v. Bivin

• Decision Date: 08 December 1958
• Docket Number: No. 17478,17478
• Citation: 106 S.E.2d 385,233 S.C. 545
• Parties: Robert H. ALDERMAN, Appellant, v. M. L. BIVIN and C. W. Meredith, individually and as co-partners in trade, doing business under the name and style of Florence Truck Terminal, Respondents.
• Court: South Carolina Supreme Court

Page 385

106 S.E.2d 385

233 S.C. 545

Robert H. ALDERMAN, Appellant, v. M. L. BIVIN and C. W. Meredith, individually and as

co-partners in trade, doing business under the

name and style of Florence Truck

Terminal, Respondents.

No. 17478.

Supreme Court of South Carolina.

Dec. 8, 1958.

William H. Smith, Jr., John L. McGowan, Florence, for appellant.

Willcox, Hardee, Houck & Palmer, Florence, for respondents.

MOSS, Justice.

Robert H. Alderman, the appellant herein, in his complaint alleges that he was the owner of two Dodge trucks and that he did, on December 13, 1957, leave the said trucks with M. L. Bivin and C. W. Meredith, partners, trading under the name of Florence Truck Terminal, the respondents herein, for the purpose of having them provide the said trucks with an anti-freeze solution. It is then alleged that the respondents supplied one of said trucks with an anti-freeze solution but that no such solution was provided for the other truck. The complaint then alleges that an extremely low temperature occurred in the City of Florence on December 13, 1957, and the water in the radiator of the Dodge truck which had not been provided with the anti-freeze solution froze, resulting in damage to the engine and allied parts thereof. The complaint alleges that because of the freezing of the said truck it was taken by the appellant to Hyman Motors, Inc. for necessary repairs. It is also alleged that Hyman Motors, Inc. advised the appellant that the only damage to the motor from the freeze was blown gaskets, and when these were replaced the motor would be as good as formerly. These repairs were made at a cost of $30.06, and the statement for replacing the gaskets was submitted to the respondents, who, in turn, submitted the statement to their insurance carrier.

It is further alleged that Great Central Insurance Company, the insurer for respondents, paid to the appellant the sum of $30.06 for which appellant signed and delivered a release and discharge in favor of the respondents 'of all claims arising as a result of the freezing above set forth.'

The complaint likewise alleges that the appellant believed that the only damage to the said Dodge truck consisted of the blown gaskets, and the respondents likewise believed that the said truck would not suffer the complete loss of its engine, and that at the time of said settlement none of the parties knew the conditions that would eventually necessitate the replacement of the entire engine in said truck. It is then alleged that the parties reached an agreement of settlement acting on a common but mistaken belief that the engine block in the said Dodge truck was not damaged as a result of the freeze above set forth, and without knowledge of the facts and in ignorance of the true condition of said engine. It is alleged that some time after the settlement, the said truck being subjected to normal usage and high engine temperatures and pressures incident thereto, a breakage came in the engine block and the freezing above set forth was the exclusive cause thereof.

The complaint asserts that neither the appellant nor the respondents nor the insurance carrier intended to pay or receive payment for breakage and replacement of the engine in the said Dodge truck, and neither of them knew or believed, or had reason to know that any such damage could or would arise from said freezing. The appellant asserts that he would not have accepted the payment and signed the release had he known the facts as to the true condition of the engine in said truck. The complaint then alleges damage in the amount of $475, being the cost of the engine replacement, and for the inoperation of the truck for a period of three days. It is asserted that under a 'mutual mistake of fact' that Great Central Insurance Company, acting for the respondents, paid to the appellant the sum of $30.06, for which appellant delivered a release and discharge in favor of the respondents. The prayer of the complaint is that the said release be rescinded and declared null and void by reason of mutual mistake of fact under which it was executed and delivered, and that the appellant have judgment for the sum of $475, the damages alleged to have been sustained by the appellant.

The respondents filed a demurrer on the ground that the complaint states insufficient facts to constitute a cause of action, the complaint showing on its face that the appellant released the respondents from all claims arising out of the occurrence alleged in the complaint.

The demurrer was heard by the Honorable G. Badger Baker, Judge of the Twelfth Circuit. Thereafter, he filed an order sustaining the demurrer and ruling that the allegations of mutual mistake of fact constituted only conclusions of fact which were not admitted by the demurrer. He also held that the allegations of the complaint showed that whatever mistake was made was that of the appellant or his agent or representative rather than by the respondents or their agent or representative. He likewise held that the allegations of the complaint do not show a mutual mistake of fact which would entitle the appellant to a rescission of the release.

The exceptions of the appellant raise the questions, (1) Was the court in error in holding the allegations of mutual mistake in the complaint constitute nothing more than conclusions of fact which were not admitted by the demurrer? (2) Did the Court err in holding that the allegations of the complaint show that whatever mistake was made was that of the appellant or his agent rather than by the respondents or their agent, and that the allegations of the complaint show no mutual mistake of fact?

In the recent case of Roper v. South Carolina Tax Commission, 231 S.C. 587, 99 S.E.2d 377, 378, we said:

'It is elementary that in passing upon a demurrer, the Court is limited to a consideration of the pleadings under attack, all of the factual allegations whereof that are properly pleaded are for the purpose of such consideration deemed admitted. Spell v. Traxler, 229 S.C. 466, 93 S.E.2d 601. If a complaint states any cause of action, a demurrer should not be sustained, Fleming v. Pioneer Life Ins. Co., 178 S.C. 226, 182 S.E. 154. It has also been held that when a fact is pleaded, whatever inferences of law or conclusions of fact may properly arise from it, are to be regarded as embraced in such averment. Bryant v. Smith, 187 S.C. 453, 198 S.E. 20.'

In the case of Oliveros v. Henderson, 116 S.C. 77, 106 S.E. 855, 857, this Court said:

'The demurrers admit the facts alleged in the complaint, but do not admit the inferences drawn by plaintiffs from such facts, and it is for the court to determine as to whether or not such inferences are justifiable; * * *'

In the case of Dahlberg v. Brown, 198 S.C. 1, 16 S.E.2d 284, an action was brought by a certified public accountant against the administratrix of an estate for services rendered to the estate. A demurrer interposed to the complaint which alleged that the defendant had gone through the form of being relieved of her duties as Administratrix, which form was a nullity on the ground that the defendant secured such relief while knowingly leaving unpaid indebtedness of the estate, aid not admit the allegation in question as a demurrer admits facts but not conclusions of law or fact, nor inferences drawn from such facts.

In the case of Henderson v. McMaster, 104 S.C. 268, 88 S.E. 645, where it was alleged that by reason of the enactment of a statute a foreign insurance company was compelled to withdraw from the state, such an allegation was a conclusion of fact and was not admittedly by demurrer.

The complaint in this action alleges that the settlement made by the appellant with the respondents and their insurance carrier was made under a 'mutual mistake of fact.' These allegations constitute nothing more than conclusions of fact, which are not admitted by the demurrer.

In the case of McGregor v. State Company, 114 S.C. 48, 103 S.E. 84, 85, which was an action for libel, it was alleged in the complaint that the publication was 'libelous.' A demurrer to the complaint was sustained. The Court, in affirming the judgment of the lower Court, said:

'* * * The further allegation of the complaint is that the publication was 'libelous'; but so much is the statement of a legal conclusion, and not of a fact. * * *'

We conclude, as did the Circuit Judge, that the filing of a demurrer by the respondents did not admit that there was a mutual mistake of fact, because this allegation constitutes nothing more than a conclusion of fact which is not admitted by the demurrer.

We come now to the consideration of the second question. Do the allegations of the complaint show a mutual mistake of fact? We recur again to the facts alleged in the complaint. The complaint, in brief, was for damages due to the alleged freezing of a truck motor belonging to the appellant, in which the respondents failed to put an anti-freeze solution. The complaint alleges that the appellant accepted the sum of $30.06 in full settlement of all claims arising as a result of such freezing. The appellant accepted this sum after his own garageman had advised him that the only damage to the motor of the truck consisted of blown gaskets. It is conclusive from the complaint that any mistake that was made in determining the damage to the appellant's Dodge truck was made by Hyman Motors, Inc., to whom the appellant had taken his truck for the purpose of ascertaining the damage incurred by reason of the failure of the respondents to properly put an anti-freeze solution in said truck. When the appellant took the truck to his garageman he thereby created such garageman his agent or representative to determine the amount of his damage. Thereafter, the appellant represented to the respondents, and their insurance carrier, what the damage was to said truck and the amount thereof. The respondents and their insurance carrier accepted the statement of ...