Caldwell v. Carroll
Decision Date | 10 March 1927 |
Docket Number | 12174. |
Citation | 137 S.E. 444,139 S.C. 163 |
Parties | CALDWELL et al. v. CARROLL et al. CALDWELL v. SAME (two cases). McMILLAN v. SAME. |
Court | South Carolina Supreme Court |
On Petition for Rehearing April 7, 1927.
Appeal from Common Pleas Circuit Court of Colleton County; John S Wilson, Judge.
Separate actions by Susan A. Caldwell and another, by Susan A Caldwell, by W. D. Caldwell, and by Elizabeth E. McMillan against J. L. Carroll and others. From an order overruling demurrers and motions to make the complaints more definite and certain, defendants in each case appeal. Affirmed.
The order of Judge Wilson overruling the demurrers, as well as the motions to make the complaints more definite and certain and the several motions and demurrers therein, are as follows:
That the said motion will be based upon the complaint in this action.
Demurrer of J. L. Carroll.
1. Because it is apparent upon the face of the complaint that the defendant county of Colleton could not be held liable as a party defendant in this action for such a tort as is alleged in the complaint, in the absence of a legislative enactment expressly creating such liability and allowing a recovery therefor; so that the defendant county of Colleton should be dismissed from the summons and complaint.
2. Because on the face of the complaint it does not appear that the defendant American Surety Company would be liable under the law for such a tort as is stated in the complaint, or for any tort arising out of the transaction referred to in the complaint, in so much as a surety company, under the law, is not liable for any tort committed by its principal in the absence of a specific provision in such bond therefor, and no such provision is alleged in the complaint.
So that, such complaint, in respect to the defendants the county of Colleton and the American Surety Company, does not state facts sufficient to constitute a cause of action in respect to either of them; and, besides, there is a misjoinder of parties apparent on the face of the complaint; so that the defendants American Surety Company and the county of Colleton should be dismissed from the summons and complaint.
Demurrer of American Surety Company.
(1) That the complaint does not state facts sufficient to constitute a cause of action against either of the defendants American Surety Company and county of Colleton, and that on the face of the complaint there is a misjoinder of parties, and the complaint against the defendants American Surety Company and county of Colleton should be dismissed.
(2) Because the county of Colleton cannot be held liable under the allegations of the complaint for the acts of negligence and the results therefrom alleged in the complaint, because there is no statutory provision creating such liability as to permit a recovery therefor, and the complaint should be dismissed as to such defendant.
(3) Because under the facts alleged in the complaint it does not appear that the defendant American Surety Company could be liable for the acts of negligence and the results therefrom as alleged in the complaint, or for any damages arising from the matters and things alleged in the complaint; and it does not appear on the face of the complaint that said defendant became liable under its bond for any tort committed by the defendant J. L. Carroll, or his agents and servants, or that said acts arose by reason of the construction of the road or were a necessary part thereof.
Demurrer of Colleton County.
(a) In that it does not appear upon the face of the complaint that the plaintiffs received bodily injury or damage in their person or property through a defect or negligent repair of a causeway or bridge, or any ferry operated by the county.
(b) In that it does not appear that the plaintiffs received any bodily injury or damage in their person or property through a defect or negligent repair of a highway.
(c) In that there is no statute imposing any liability upon the defendant Colleton county under the facts alleged in the complaint.
(d) In that the complaint shows upon its face that the injuries complained of were not received while the plaintiffs were traveling or otherwise using the said public road.
(e) In that it is not alleged in the complaint that the said public road was a highway.
(f) In that the complaint shows upon its face that the said public road was being constructed, and was not being repaired, and it fails to allege any defect in the said public road or any negligent repair thereof.
Order Overruling Motions and Demurrers.
By consent of all parties to the above-entitled causes, the four notices to make the several complaints more definite and certain, served by each of the defendants herein, and the four demurrers interposed to the several complaints in the several causes by each of the defendants herein, were heard before me at Orangeburg, S. C., on October 8, 1925.
Counsel for the several parties vigorously argued these matters before me, and I have given the motions and demurrers the most careful consideration.
I am satisfied that the several motions in these causes to make the complaints more definite and certain should be overruled. The Code provision is to the effect that the court may require a pleading to be made more definite and certain by amendment if the allegations of the pleadings are so indefinite or uncertain that the precise nature of the charge is not apparent. However, a careful examination of the allegations contained in the several complaints in the above causes will show that they are neither indefinite nor uncertain, and the facts alleged are so stated as to leave no...
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