Mullinax v. Hambright

Decision Date11 October 1920
Docket Number(No. 10500.)
Citation104 S.E. 309
CourtSouth Carolina Supreme Court
PartiesMULLINAX. v. HAMBRIGHT et al.

Appeal from Common Pleas Circuit Court of Cherokee County; Ernest Moore, Judge.

Action by John Mullinax, administrator, against J. B. Hambright and others, constituting the Cherokee County Highway Commission. From an adverse judgment, plaintiff appeals. Affirmed.

This is an appeal from an order sustaining a demurrer to the complaint, which is as follows:

"Plaintiff shows to the Court:

"First. That Chas. Mullinax, son of plaintiff, died intestate in Cherokee county, S. C, on June 17, 1919, and left surviving him, John Mullinax, his father; Fulton, Raymond, Lillian, and Victoria Mullinax, minors, brothers and sisters, and for whose benefit this action is brought. That on the 29th July, 1919, plaintiff was duly appointed administrator of the estate of Chas. Mullinax, deceased, and entered upon the discharge of the duties of his office as such.

"Second. That the defendants, J. B. Ham-bright, W. C. Hambrick, and J. D. Jeffries, are all residents and citizens of Cherokee county, compose and constitute the Cherokee Highway Commission; that the defendants were and are now engaged in constructing highways, erecting houses, platforms, scaffolds, and other structures, using rock crushers, tractors, hauling rock and other material, and using other machinery and appliances in constructing said highways, using the convicts or chain gang of the county, in part, as laborers in their work.

"Third. That on the 17th day of July, 1919, in Cherokee county, while in duress and under the control and dominion of defendants, their agents and servants, and without freedom of will, who was a minor under 17 years of age, and while going about the duties imposed upon him by defendants, said Chas. Mullinax was, by the willful, wanton, gross, and careless conduct of defendants, their agents and servants, killed; his body being lacerated, mashed, and ground into pieces by a scaffold, platform, or other wooden structure, negligently erected by defendants, their agents and servants, falling upon him.

"Fourth. That said Chas. Mullinax lost his life because said scaffold, platform, or structure was insecurely and improperly built, of light, faulty, and defective material, overloaded with rock and rendered unsafe, over which said Chas. Mullinax had no control on account of his duress, no knowledge on account of his age, and was not given a safe place to work, but forced into an unsafe place to work, all of which was under the control of, known, or ought to have been known, by defendants, their agents and servants in charge, and said scaffold platform, or structure fell, and Chas. Mullinax was killed on account of the willful, reckless, and careless conduct of defendants, their agents and servants; and by the loss of a son and brother, plaintiff, and those whom he represents, have sustained a great loss, suffered much physical and mental pain and distress of mind and body, to their damage $10,000. That the defendants admit the killing of said Chas. Mullinax, but refuse, upon demand to do so, to compensate plaintiff and his children for the loss sustained, notwithstanding they have ample means to do so; plaintiff and his children being poor and without means.

"Wherefore plaintiff demands judgment against the defendants J. B. Hambright, W. C. Hambrick, and J. D. Jeffries for the sum of $10,000, against Cherokee Highway Commission for $10,000 and the cost of the action."

The defendants demurred to the complaint, on the ground "that it does not state facts sufficient to constitute a cause of action, in that the said Cherokee County Highway Commission is a governmental agency, and cannot be sued for a tort, unless authority is expressly given by statute, the said Cherokee County Highway having been clothed by the General Assembly of the state of South Carolina to issue bonds and construct improved highways in Cherokee county, and on the further ground that this action is brought against the Cherokee County Highway Commission, there being no such body created by statute or otherwise; the correct name being the Cherokee County Highway Commission."

His honor the circuit judge made the following order, sustaining the demurrer:

"After argument pro and con, it is ordered that the demurrer be sustained, in so far as the complaint attempts to state a cause of action against the Cherokee County Highway Commission, for the reason that the said commission is a governmental agency, and as such is not liable in action for tort in the absence of a statute so providing.

"In so far as the complaint purports to state a cause of action against the individuals composing the said Cherokee County Highway Commission, a decision is reserved until the testimony is out, and without prejudice to the rights of the defendants, 'to demur specifically to the complaint, on the ground that it fails to state facts sufficient to constitute a cause of action against the commissioners as individuals.' Further ordered that, notice of intention to appeal having been announced by the plaintiffs' counsel, the cause be continued."

The appellant's exceptions are as follows:

"It is respectfully submitted that his honor erred in sustaining the demurrer:

"First. When he held that plaintiff could not maintain an action of tort, for compensation for negligently and willfully killing plaintiff's son, because defendant was a governmental agency; the error being that this would be in violation of the Fourteenth Amendment of the United States Constitution, which provides, 'Nor shall any state deprive any person of life, liberty, or property, without due process of law, ' would deprive plaintiff of compensation for killing his son and render him remediless,...

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12 cases
  • McCall by Andrews v. Batson
    • United States
    • South Carolina Supreme Court
    • 16 October 1984
    ...S.C. 197, 113 S.E. 70 (1922). 80. Gilchrist v. City Council of Charleston, 115 S.C. 367, 105 S.E. 741 (1921). 81. Mullinax v. Hambright, 115 S.C. 22, 104 S.E. 309 (1920). 82. Triplett v. City of Columbia, 111 S.C. 7, 96 S.E. 675 (1918). 83. Parrish v. Town of Yorkville, 96 S.C. 24, 79 S.E. ......
  • Strickfaden v. Green Creek Highway Dist.
    • United States
    • Idaho Supreme Court
    • 10 July 1926
    ... ... Thornton, ... supra ; Cassidy v. City of St. Joseph, ... supra ; O'Brien v. Rockingham County, ... supra ; Mullinax v. Hambright, 115 S.C ... 22, 104 S.E. 309; Dixon v. People, supra ; ... 15 C. J., sec. 273, p. 569, and cases cited.) ... It is ... ...
  • State Highway Commission v. Knight
    • United States
    • Mississippi Supreme Court
    • 9 April 1934
    ... ... 43; Ancrum v. Highway Department, 150 S.E. 981; ... Stevens v. Commissioner [170 Miss. 62] of Palisades ... Interstate Park, 108 A. 645; Mullinax v ... Hambright, 104 S.E. 309; Smith v. State of New ... York, 13 A. L. R. 1264; Board of Improvements, etc., ... v. Moreland, 94 Ark. 380; ... ...
  • Faust v. Richland County
    • United States
    • South Carolina Supreme Court
    • 11 November 1921
    ...the college as an instrumentality of the government, an agent of the state, would not have been held liable. In Mullinax v. Hambright, 115 S.C. 76, 104 S.E. 309, the plaintiff sued the Cherokee county highway commission the wrongful death of his intestate caused by the negligent act of the ......
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