Parker v. Brown

• Decision Date: 28 August 1940
• Docket Number: 15143.
• Parties: PARKER v. BROWN et al.
• Court: South Carolina Supreme Court

10 S.E.2d 625

195 S.C. 35

PARKER v. BROWN et al.

No. 15143.

Supreme Court of South Carolina

August 28, 1940

Wolfe & Fort, of Gaffney, and Carlisle, Brown & Carlisle of Spartanburg, for appellants.

Dobson & Dobson, of Gaffney, for respondent.

J STROM THURMOND, Acting Associate Justice.

This is an appeal from an order overruling a demurrer to a complaint. The action was commenced in the Court of Common Pleas for Cherokee County, by service of summons and complaint on the defendants on March 14, 1939.

The complaint alleges that the plaintiff, E. R Parker, was appointed Tax Collector for Cherokee County on March 27, 1934, and served in this office until July 6, 1936.

That defendant American Surety Company of New York is a corporation organized under the laws of one of the States of the United States of America, doing business in this State and is engaged in the business of underwriting surety bonds for County officials.

That the defendant H. M. Brown was appointed Treasurer of Cherokee County on July 1, 1931, and qualified by executing and delivering to the State of South Carolina a surety bond in the penalty of $20,000.00 with the defendant American Surety Company of New York as surety thereon. The condition of said obligation being that if the said defendant Brown shall well and truly perform the duties of said office as now or hereafter required by law, during the whole period he may continue in said office, then said obligation to be void and of no effect or else to remain in full force and virtue.

That on July 22, 1933, pursuant to an Act of the General Assembly of this State increasing the amount of said Treasurer's bond to $30,000.00, the said defendant Brown executed and delivered to the State another bond in the sum of $10,000 with the same surety thereon.

That on March 30, 1934, Alma Mills, Musgrove Mills, Hamrick Mills and Limestone Mills, all corporations owning property in said State and County, subject to taxation, composing four units of a chain of textile manufacturies, commonly known as the Hamrick chain of mills, having allowed the taxes assessed and levied against them for the fiscal year 1933 to become delinquent, issued their several checks on a Gaffney bank payable to defendant Brown, as County Treasurer, for the amount of taxes due by each corporation for the fiscal year 1933.

That defendant Brown issued official tax receipts as County Treasurer to each of the four corporations without having collected said checks and receiving the money therefor in payment for said taxes due by said mills for the year 1933; and failed and neglected to issue executions for the said taxes on or before the 1st day of May, 1934, as required by law so to do; and on account of said acts, it is alleged that he failed in the faithful performance of his duties as County Treasurer and thereby breached the terms and conditions of his official bonds.

That as Tax Collector, plaintiff was entitled to receive for his services such fees and commissions as are provided by the laws of the State of South Carolina governing his office, and alleges that by reason of the breaches by defendant Brown as County Treasurer of the terms and conditions of his bond, he was deprived of the fees and commissions allowed him as Tax Collector in the particulars named.

It is alleged that all of the property of said corporation mills was subject to levy and sale for State and County taxes due for the year 1933, and during the entire term of the plaintiff as Tax Collector; that each of said mills had at all times sufficient assets to pay said taxes and sufficient funds on hand in the payee bank with which to pay them; and that had the County Treasurer issued his executions and delivered them to plaintiff, he could have readily and easily collected the said taxes during the term of his office, including the fees and commissions allowed him under the law.

Plaintiff claims that during the term of his office as Tax Collector, he was damaged by reason of the breaches of the bond of defendant Brown, as County Treasurer, in the particulars set forth, in the sum of $2,576.31, all of which said sum would have been earned by him had the County Treasurer lived up to and faithfully performed the requirements of his office.

The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action against them, or either of them, in that:

(a) There is no allegation of a primary or remedial right possessed by plaintiff.

(b) Nor of a corresponding primary duty owed by defendants to plaintiff.

(c) Nor of a wrong suffered by plaintiff.

(d) Nor of any remedy or relief to which plaintiff has become legally entitled.

Arguments on the demurrer were heard by his Honor T. S. Sease, Resident Judge of the Seventh Circuit, at his chambers, on August 19, 1939. Judge Sease filed an order overruling the demurrer on September 1, 1939, and the appeal is from said order.

The facts and circumstances out of which the issues in this case arise are fully set out in the opinions of this Court in two appeals involving other angles of the same situation, namely, State ex rel. Cherokee County et al. v. H. M. Brown et al., 187 S.C. 223, 196 S.E. 889, and American Surety Company v. Hamrick Mills et al., 191 S.C. 362, 4 S.E.2d 308, 124 A.L.R. 1147. Although presenting another question entirely, this case is one of the repercussions of the said case of State ex rel. Cherokee County v. Brown et al., supra. That case was instituted on July 20, 1935, by the State of South Carolina on the relation of Cherokee County against H. M. Brown and American Surety Company to recover additional penalties of five per cent that had accrued against the four mills of the Hamrick group, on account of defendant Brown, as County Treasurer, not depositing their checks until after May 1, 1934, and recovery was had in said action. The present case is for damages which the respondent, as Tax Collector, claims he has sustained by reason of the same failure on the part of County Treasurer Brown to issue executions against the said mills. In his written argument, respondent says the gist of his cause of action here is not for fees and commissions but for damages for the prevention of the collection of fees and commissions.

This case presents a novel question, and a diligent search of the authorities in this State and in other jurisdictions fails to reveal a case similar to the one here.

Appellants appealed to this Court upon twelve exceptions, but the respondent states in his brief that, in an effort to simplify the issues involved, all of the discussion might be centered around the two following issues:

(1) Did H. M. Brown, as Treasurer of Cherokee County, owe any legal duty to E. R. Parker, as Tax Collector for Cherokee County, in the issuance of tax executions for delinquent taxes under the provisions of law applicable thereto?

(2) If so, did E. R. Parker, as Tax Collector, suffer any damages as the proximate cause of the failure of the Treasurer, to obey the law in reference to the issuance of tax executions for delinquent taxes?

We shall now proceed with consideration of the first issue, and it will be unnecessary to consider the second issue in view of the conclusion reached in the first issue. For the sake of brevity, we shall hereafter refer to the respondent as "Tax Collector", to appellant Brown as "Treasurer", and to appellant American Surety Company of New York as "Surety".

The Tax Collector claims he is entitled to recover of the Treasurer and his Surety in this action under certain statutory laws of our State. It is well settled that a plaintiff claiming a benefit under a statute must bring himself clearly within its intention to benefit.

Mr. Chief Justice McIver, in a concurring opinion, in Walker v. Chester County, 40 S.C. 342, 18 S.E. 936, 937, in speaking of an action brought under the statute, made this statement: "The right *** being based entirely upon a special statute, * * the conditions upon which such right is conferred must appear in the complaint, for otherwise no right of action is stated."

Lowden v. Moses, 12 S.C.L. 120, 1 McCord 120, holds: "When a new remedy or a new cause of action is given by a statute, the plaintiff who would avail himself of either must bring himself within the statute."

Denton v. Missouri, etc., R. Co., 90 Kan. 51, 133 P. 558, 559, 47 L.R.A., N.S., 820, Ann.Cas.1915B, 639, holds: "The rule referred to results from a special application of the broader principle that the object of the statute must be looked to in order to determine who may invoke its benefit. The test whether an individual * * may recover damages from the wrongdoer is whether the Legislature intended to give such right. *** A matter necessarily to be considered in applying that test is whether the lawmakers had similar injuries in mind and designed to prevent them."

In order for a plaintiff to maintain an action under a statute, he must show that the statutory duty was imposed for his benefit, or was one which the defendant owed to him for his security. Rosse v. St. Paul, etc., Ry. Co., 68 Minn. 216, 71 N.W. 20, 37 L.R.A. 591, 64 Am.St.Rep. 472.

"The right of action being purely statutory, the proof should fulfill every requirement of the statute, and to do so it was necessary that the complaint itself should contain appropriate allegations to sustain that proof." Muckenfuss et al. v. A. & C. A. L. Ry. Co. et al., 121 S.C. 110, 114, 113 S.E. 367, 369.

Section 3045 of the Code of Laws of South Carolina for 1932 specifies the form of bond to be given by all public officers in this State, and said bond contains the following condition "Now, the condition of the above obligation is such that if the above...