Harrison v. Moragne
| Decision Date | 07 May 1943 |
| Docket Number | 15538. |
| Citation | 25 S.E.2d 742,202 S.C. 491 |
| Parties | HARRISON v. MORAGNE et al. |
| Court | South Carolina Supreme Court |
Samuel Want, Sam Rogol, and L. M. Lawson, all of Darlington, for appellants.
Mozingo & Watts, of Darlington, for respondent.
Appellants' brief presents five questions for determination. These questions, however, may be classified under two general heads; one directed to the demurrer to the amended complaint and the other to the motion for non-suit.
This action was begun by the service of a summons and complaint dated October 1, 1940. To the complaint the defendants duly demurred, which demurrer was sustained by Judge Dennis resident Judge of the Fourth Circuit, with leave to the plaintiff to serve an amended complaint. On December 9, 1940 an amended complaint was served, and against the amended complaint a demurrer was also directed on the same grounds as the demurrer to the original complaint. This second demurrer was also heard by Judge Dennis, who overruled the same.
The appellants duly answered and the cause came on for trial before Judge Greene, as presiding Judge.
At the conclusion of respondents case the appellants moved for a non-suit which was granted with respect to respondent's claim for damages to the truck and to the contents thereof, because the evidence disclosed that the truck and contents were not owned by the respondent, but were owned by a partnership, of which the respondent was a member. Non-suit was refused with respect to respondent's claim for damages for personal injuries.
The defendants offered no testimony. The jury returned a verdict in favor of respondent for the sum of three thousand dollars.
It is the contention of appellants that the demurrer to the amended complaint should have been sustained because (a) there is no showing of negligence on the part of the appellant; (b) it appears that the accident was due to contributory negligence on the part of the respondent.
Did the amended complaint state any delicts on the part of the defendant Moragne sufficient to predicate an action for damages for personal injuries? We think it did.
It was alleged that the defendant Moragne was the contractor charged with building, grading, surfacing and improving highway No 52; that he caused a sign without words or markings on the Florence side thereof to be placed in the center of the paved road; that the sign was so placed that it was impossible for a truck driver to pass it without hitting it or running off the pavement; that the shoulder was five inches lower than the pavement at the point where the sign was placed; that in driving past the sign he turned to the right to avoid hitting the sign and the rear right wheel of his truck dropped from the pavement to the shoulder of the road so suddenly and unexpectedly that the truck was overturned; that the highway was open for traffic and there were no warning signs or markings to warn plaintiff that there was a drop at the edge of the pavement.
In paragraph 7 of the amended complaint the plaintiff alleges that the injury and damage sustained by him was caused proximately and entirely by the wilful, wanton and gross negligence of the defendant Moragne in performing the duty he owed to the traveling public and the plaintiff in particular, and sets out the eight grounds of negligence upon which he relied.
For the purposes of a demurrer the allegations of the complaint are taken as true, and the test is whether the allegations, thus admitted, state a cause of action. Herndon v. Continental Casualty Co., 144 S.C. 448, 142 S.E. 648.
Section 477, Volume 1, Code of Laws 1942 reads: "In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view of substantial justice between the parties."
In the instant case the major acts of negligence in the complaint were (1) the placing of an obstruction in the center of the paved highway; (2) the presence of a hole or drop in the shoulder of the highway beside the pavement; and (3) failure to give any warning of the dangerous situation existing at the point where the accident occurred. The complaint contains eight specifications of negligence embracing these three major acts.
In Latimer v. County of Anderson, 95 S.C. 187, 78 S.E. 879, it was held that the County was liable for damages when injury resulted to a traveler on the County highway resulting from a rope stretched across the road some distance from the place where the work of repairing the road was going on.
In Livingston v. South Carolina State Highway Department, 178 S.C. 323, 183 S.E. 8, it was held that the ...
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