BAKER
Justice.
By
order of this Court the remittitur of the judgment in this
case heretofore filed was stayed, and a rehearing granted on
all issues. Pursuant to direction of the Court in said order
the case was orally argued at the November, 1940, term.
Upon a
reconsideration of the case, we conclude that there was no
oversight or misapprehension by the Court of any applicable
principle in our former disposition of exception 2, to which
we adhere.
We
reproduce that portion of our former opinion which sets forth
the history of the case and the issues involved, and at the
appropriate place herein, the holding therein made on said
exception 2, all of which is hereby adopted as the opinion of
the Court.
The
plaintiff brought action, as the administrator of the estate
of his minor son, Arthur Athanas, deceased, to recover
damages from the defendant for the death of the said Arthur
Athanas. The complaint, brought under the statute commonly
known as Lord Campbell's Act, is for the benefit of the
plaintiff, Jack Athanas and Venus Athanas, who are the father
and mother of the deceased Arthur Athanas. The complaint
alleges that Arthur Athanas came to his death by being struck
and run over by a truck owned by the defendant and being
operated by an agent and servant of the defendant; that the
truck was at the time being used by the defendant for the
purpose of repairing and maintaining the streets. The
complaint further alleges, upon information and belief, that
the injury and death of plaintiff's intestate was
directly and proximately caused by the mismanagement and negligence of the defendant, its agents and
servants, in the use of an instrumentality
in the repair and maintenance of the streets, in the
following particulars: the driver of the truck was operating
it without keeping a proper lookout; the driver of the truck
was operating it at a reckless rate of speed, greater than
was reasonable and proper under the circumstances, contrary
to the laws of the State and in violation of Section 272,
subsection 55, of the Code of Ordinances of the City of
Spartanburg. That the truck was being driven so as to enter
one street from another at a greater speed than is permitted
by the Ordinance of the City. That the truck was being
operated at an unlawful rate of speed contrary to law and to
the provisions of Section 272, subsection 33, of the
Ordinances of the City. That the death of Arthur Athanas was
not brought about by his own negligence, nor did he
negligently contribute thereto; nor was it brought about by
the negligence of the persons for whose benefit this action
is brought, nor did they negligently contribute thereto.
The
defendant demurred to the complaint for that it failed to
state facts sufficient to constitute a cause of action for
that:
"(1)
It does not appear from the allegations of fact therein set
out that plaintiff's intestate was injured through any
defect in a street, and
"(2)
It does not appear from the allegations of fact therein set
out that plaintiff's intestate was injured by reason of
defect or mismanagement of anything under the control of
defendant municipality engaged in making repairs on any
streets.
"(3)
Should the Court consider that the complaint states facts
sufficient to constitute a cause of action for defect or
mismanagement of an instrumentality under the control of the
defendant engaged in making repairs on a street, then on the
further ground that the Court could have no jurisdiction of
the subject matter of such an action in that there is no
statute giving plaintiff such right of action.
" (4) In that it does not appear from the complaint
that the beneficiaries in whose behalf the action is brought
did not in any way bring about the injury or damage
complained of or by their own negligent act or that they did
not negligently contribute thereto."
The
trial Judge overruled the demurrer by an order dated August
23, 1939. By a subsequent order, dated November 2, 1939, he
said:
"Heretofore
on August 23, 1939, I filed an order herein overruling
certain motions and a demurrer interposed by defendant. In
due time defendant served notice of intention to appeal to
the Supreme Court and is in course of perfecting the appeal.
"Counsel
for plaintiff has now indicated to the Court a willingness
that the demurrer be sustained on the fourth ground thereof,
provided plaintiff be given leave to amend the complaint by
adding thereto the allegation set out below.
"***,
that the demurrer be and the same is herewith sustained on
the fourth ground thereof, to-wit: that it does not appear
from the complaint that the beneficiaries in whose behalf the
action is brought did not in any way bring about the injury
or damage complained of by their own negligent act or that
they did not negligently contribute thereto; with leave
nevertheless to plaintiff to serve and file within ten days
after the filing of this order an amended complaint
containing an additional paragraph number IX-a, as follows:
"'IX-a.
That the injury and death of said Arthur Athanas was not
brought about by the negligence of the said persons for whose
benefit this action is brought, nor did they negligently
contribute thereto.'
"Ordered,
further, that this order shall be without prejudice to the
pending appeal by defendant to the order filed August 23,
1939, on any other ground; and said appeal shall be
considered as having the same status as if the complaint were
amended as herein allowed and the motions and demurrer on all
other grounds thereafter made and overruled."
The appeal is from both of these orders and is
bottomed upon two exceptions:
"I.
In overruling appellant's demurrer to the complaint as
not stating facts sufficient to constitute a cause of action;
the error being that it does not appear from the allegations
of fact therein set out that plaintiff's intestate was
injured either by reason of a defect in any street or by
reason of defect or mismanagement of anything under the
control of appellant municipality engaged in making repairs
on any streets and the complaint therefore states no cause of
action allowed by the enabling statute permitting suit
against a municipality.
"II.
In overruling appellant's demurrer to the complaint as
not stating facts sufficient
to constitute a cause of action; the error being that even if
it be considered that the complaint states a cause of action
for death resulting from defect in or mismanagement of any
instrumentality under the control of appellant engaged in
making repairs on a street, nevertheless there is no statute
under which such a cause of action could survive to
plaintiff, and the Court is therefore without jurisdiction of
the subject matter of the action."
In
their brief counsel for appellant state their two exceptions
(for argument) in the following wise:
"(1)
That complaint which alleges merely that a city truck was at
the time of inflicting the injury 'being used by the
defendant for the purpose of repairing and maintaining its
streets' does not sufficiently state a cause under the
Enabling Statute for an injury through defect in or
mismanagement of a street repair instrumentality; and
"(2)
That no causes for injury resulting in death survive against
a municipal corporation except such as survive under Section
5858, Code of 1932, which does not provide for the survival
of an action where death results from an injury sustained
through defect in or mismanagement of a street repair
instrumentality."
Section 7345 of the Code of 1932 is in these words:
"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. If any such defect in a street, causeway or
bridge existed before such injury or damage occurred, such
damage shall not be recovered by the person so injured if his
load exceed the ordinary weight: Provided, The said
corporation shall not be liable unless such defect was
occasioned by its neglect or mismanagement: Provided,
further, such person has not in any way brought about any
such injury or damage by his or her own negligent act or
negligently contributed thereto."
Exception
I.
The
law of the scope of the Section (7345) of the Code above set
out was reviewed and settled by the case of Reeves v.
City of Easley, 167 S.C. 231, 166 S.E. 120, in which the
able and exhaustive opinion was by the present Chief Justice,
and since that important decision there has been none in
conflict with the principle there laid down that, stated
generally, the statute permits suits only for damage to one
in ordinary use of the streets resulting from a defect
therein or defect in or mismanagement of some instrumentality
of the town or city when in actual use in street repairs.
See, also, Singleton v. City of Sumter, 180 S.C.
536, 186 S.E. 535. The portion of the statute here directly
involved is that relating to the "mismanagement of
anything [instrumentality] under control" of the
municipality.
The
allegation in the complaint attacked by the demurrer as a
legal conclusion and not containing sufficient factual
statements to come within the terms of the
statute constitutes Paragraph 4 thereof, as follows
"The said truck at the time was being used by the
defendant for the purpose of repairing...
