Chilton v. City of Columbia

• Decision Date: 04 April 1966
• Docket Number: No. 18485,18485
• Citation: 147 S.E.2d 642,247 S.C. 407
• Parties: John Henry CHILTON, as Administrator of the Estate of Ronnie Chilton, Appellant, v. The CITY OF COLUMBIA and Southern Railway Company, Inc., of whom The City ofColumbia is, Respondent.
• Court: South Carolina Supreme Court

Page 642

147 S.E.2d 642

247 S.C. 407

John Henry CHILTON, as Administrator of the Estate of Ronnie Chilton, Appellant, v. The CITY OF COLUMBIA and Southern Railway Company, Inc., of whom The City ofColumbia is, Respondent.

No. 18485.

Supreme Court of South Carolina.

April 4, 1966.

Gary Paschal, Dallas D. Ball, Luther M. Lee, Columbia, for appellant.

John W. Sholenberger, Edward A. Harter, Jr., Columbia, for respondent.

BUSSEY, Justice.

This is an appeal from an order sustaining a demurrer, by the City of Columbia, to a complaint in an action for wrongful death. To quote from the agreed statement of the case:

'The Complaint alleges that the Decedent at the times mentioned therein was about three years of age. That on or about March 12, 1963, 'he fell into a ditch at the northwestern corner of the intersection of Calhoun and Williams Streets in the City, county and state aforesaid and drowned'; that said 'streets and their intersections were under the ownership and control of the Defendants, the City of Columbia and the Southern Railway Company, Inc.' It is further alleged that Respondent, the City of Columbia, was negligent in that it

"(1) failed to provide a fence or enclosure around the ditch;

"(2) failed to pipe the water away to prevent depth of water in the ditch;

"(3) failed to properly supervise the area knowing that small children frequented the area.'

'The Respondent, The City of Columbia, demurred to the complaint on the grounds that it does not state facts sufficient to constitute a cause of action because the City is not subject to a suit for tort except as provided by Statute and the Complaint fails to bring the action within the provisions of the Statute in that it does not 'contain sufficient allegations of fact tending to show that there was a defect in a street under the control of this Defendant, And on the contrary contains allegations showing that the ditch into which Plaintiff's intestate fell and drowned was not in the traveled portion of the street but adjacent thereto and was used to carry off water and not for travel or street purposes." (Emphasis added.)

At the outset, it should be pointed out that the italicized portion of the quotation from respondent's demurrer is not borne out upon an examination of the complaint. The only reference in the complaint to the location of the ditch is simply 'at the northwestern corner of the intersection of Calhoun and Williams Streets.' Webster's Third International Dictionary gives as the first definition of the word 'at' the following:

'Used as a function word to indicate presence in, on or near.'

While the complaint alleges that there was water in the ditch and that the decedent drowned therein, the complaint is silent as to the use or purpose of said ditch. It is elementary that in passing on a demurrer the court is limited to the allegations of the complaint and cannot consider facts not alleged therein. A demurrer to a complaint cannot be sustained if facts sufficient to constitute a cause of action can be fairly gathered from the complaint, however uncertain, defective, or imperfect the allegations of the complaint may be. Coral Gables v. Palmetto Brick Co., 183 S.C. 478, 191 S.E. 337.

In considering a demurrer to a complaint, the factual allegations thereof must be considered as true, and, together with the relevant inferences reasonably deducible therefrom, are to be liberally construed in plaintiff's favor. Skinner and Ruddock, Inc. v. London Guarantee & Accident Co. et al., 239 S.C. 614, 124 S.E.2d 178.

If the appellant has a cause of action, it is by virtue of Section 47--70 of the 1962 Code of Laws, which permits an action if the death was caused by the negligence of the city, 'through a defect in any street, causeway, bridge or public way or by reason of a defect or mismanagement of anything under control of the corporation within the limits of any city.' The question, therefore, is, does the complaint state a cause of action within the purview of the Code Section? We think it is obvious that the complaint alleges negligence on the part of the respondent and, liberally construed, it alleges that the ditch into which the decedent fell was in the corner of the intersection of two streets in the City of Columbia. We do not think it could even be contended that an open unguarded ditch, deep enough to drown, in, and located in a street intersection did not constitute a defect in the street. ...