Eiserhardt v. State Agr. and Mechanical Soc. of S. C., 17592

• Citation: 111 S.E.2d 568,235 S.C. 305
• Decision Date: 11 December 1959
• Docket Number: No. 17592,17592
• Parties: Mrs. Bernice P. EISERHARDT, Respondent, v. STATE AGRICULTURAL AND MECHANICAL SOCIETY OF SOUTH CAROLINA, Appellant.
• Court: South Carolina Supreme Court

Page 568

111 S.E.2d 568

235 S.C. 305

Mrs. Bernice P. EISERHARDT, Respondent, v. STATE AGRICULTURAL AND MECHANICAL SOCIETY OF SOUTH CAROLINA Appellant.

No. 17592.

Supreme Court of South Carolina.

Dec. 11, 1959.

Cooper & Gary, Frank K. Sloan, Columbia, for appellant.

Golden & Lourie, Columbia, for respondent.

OXNER, Justice.

Plaintiff brought this action to recover damages for personal injuries sustained on the evening of September 21, 1957, as a result of stepping into a hole in a parking lot controlled and operated by defendant. Plaintiff and others in her family were planning to attend a Duke-Carolina football game. They drove into this lot, paid a parking fee of fifty cents and the injury occurred when plaintiff stepped out of the automobile. She alleged negligence and recklessness on the part of the defendant in the maintenance of said parking area. Defendant denied all allegations of negligence and recklessness, interposed a plea of contributory negligence and wilfulness, and as a further defense alleged that it was an eleemosynary corporation, immune from liability for tort under the laws of this State. It also moved for judgment on the pleadings upon the ground that its charter and the pleadings clearly established that it was immune from tort liability. This motion was refused by the County Judge. He held that the fact alone that defendant was chartered as an eleemosynary corporation 'does not itself ipso facto grant to it immunity from any and all liabilities from the torts of itself, its agents or its servants'. From the denial of the motion for judgment on the pleadings, defendant has appealed.

Appellant contends that its character as a charitable corporation is established by its charter which is not open to collateral attack, and the fact that it obtains revenue from the operation of this parking lot does not destroy its immunity from tort liability. Respondent contends: (1) That appellant's charter is not conclusive as to its charitable character and that she is entitled to offer evidence as to the nature of its business. (2) That even if appellant be found a charitable organization, the operation of a parking lot was a commercial venture wholly unconnected with its charity, to which immunity would not extend. Neither party questions the propriety of raising these issues by a motion for judgment on the pleadings and, therefore, we shall assume that they are properly before us.

Appellant was incorporated by Act No. 277 of the 1941 Acts of the General Assembly, 42 Stat. at L. p. 551. It was declared to be 'an eleemosynary corporation, whose function shall be to promote the material, educational, agricultural and industrial interests of the State.' Among other powers, the corporation was authorized to 'hold Fairs and Exhibits on its Fair Grounds in the City of Columbia and elsewhere' and to 'charge admission or dues to its members and the general public.' In addition to the other functions enumerated in the Act, it was stated that said corporation 'shall have such powers and enjoy such privileges as are conferred upon all existing eleemosynary corporations under the applicable law of South Carolina.'

The general statute authorizing the incorporation of charitable and eleemosynary corporations is contained in Sections 12-751 to 12-765 of the 1952 Code. This statute authorizes the Secretary of State to issue certificates of incorporation to any church, college, school, lodge, society, company or other association having no capital stock divided into shares, but holding or desiring to hold property in common for religious, educational, social, fraternal, charitable or eleemosynary purposes other than for the insurance of life, health, accident or property.

In Sandel v. State, 126 S.C. 1, 119 S.E. 776, 778, it was stated: 'Eleemosynary corporations are those created for charitable and benevolent purposes.' However, as we pointed out in Johnson v. Spartanburg County Fair Association, 210 S.C. 56, 41 S.E.2d 599, 604, the word 'eleemosynary' is not a technical one of art or one which has 'acquired a rigid meaning by judicial construction.' We there expressed doubt as to whether the General Assemly intended to use the word 'eleemosynary' in the foregoing general statute only in the sense of denoting a purpose to promote the welfare of mankind by works of charity. We stated that this word may have been used 'in a broader sense to denote an unselfish purpose to advance the common good in any form or manner.'

It is generally held that even if an institution be chartered as a charitable or eleemosynary corporation, this fact is not conclusive of its character, kind or purpose. In a tort action against such corporation its true nature may be shown from the manner in which it conducts its business as well as from its articles of incorporation, and on the trial of the case any competent evidence may be offered with respect to the actualities of its operations. Annotation 119 A.L.R. 1012. Indeed, in White v. Central Dispensary & Emergency Hospital, 69 App.D.C. 122, 99 F.2d 355, 360, 119 A.L.R. 1002, the Court said: 'We know of but one court which has taken the position that the charter of a corporate defendant is conclusive against a plaintiff upon this question.' The reference was to a Georgia decision. And as pointed out in Rafferzeder v. Raleigh Fitkin-Paul Morgan Memorial Hospital, 30 N.J.Super. 82, 103 A.2d 383, a claim by a corporation of immunity from tort liability is an affirmative defense.

In line with the general rule above stated, we have held in several cases that the charitable character of a corporation depends upon the facts and its charter is not conclusive.

In Lindler v. Columbia Hospital, 98 S.C. 25, 81 S.E. 512, although the defendant hospital was incorporated as an eleemosynary institution, the Court discussed at length the manner in which it was actually operated. In Textile Hall Corporation v. Hill, 215 S.C. 262, 54 S.E.2d 809, it was held that although the plaintiff was organized as an eleemosynary corporation, evidence was properly admitted showing that it was not operated for a charitable, scientific or educational purpose within the contemplation of certain provisions in the Constitution permitting institutions organized for these purposes to be exempt from taxation.

The question now under consideration was squarely decided adversely to appellant's contention in Vermillion v. Woman's College of Due West, 104 S.C. 197, 88 S.E. 649. In that case a suit was brought against the College to recover damages for alleged wrongful death resulting from a fall of a balcony during an entertainment in the College auditorium. The trial Judge granted a nonsuit on the ground that defendant was a charitable corporation immune from tort liability. This Court, in reversing the order of nonsuit, held that the statements in the act of incorporation were insufficient to show that the College was a charitable institution and that it was incumbent...