Pinkston v. Morrall

• Decision Date: 12 July 1960
• Docket Number: No. 17682,17682
• Court: South Carolina Supreme Court
• Parties: Robert V. PINKSTON, Respondent, v. W. A. MORRALL, John F. Morrall, Norman G. Morrall, all d/b/a Morrall Furniture Company, and The City of Beaufort, South Carolina, of whom The City of Beaufort, South Carolina is, Appellant.

Page 286

115 S.E.2d 286

236 S.C. 601

Robert V. PINKSTON, Respondent, v. W. A. MORRALL, John F. Morrall, Norman G. Morrall, all d/b/a

Morrall Furniture Company, and The City of

Beaufort, South Carolina, of whom The

City of Beaufort, South

Carolina is, Appellant.

No. 17682.

Supreme Court of South Carolina.

July 12, 1960.

Thomas & Thomas, Felix B. Greene, Jr., William N. Levin, Beaufort, for appellant.

Dowling, Dowling & Sanders, Beaufort, for respondent.

STUKES, Chief Justice.

This is an appeal from an order overruling demurrer which was interposed by the City of Beaufort to the complaint of respondent. It was alleged in the latter that respondent received personal injuries in a motor vehicle accident in which three vehicles were involved. One was the truck of respondent's employer which respondent had parked on the sidewalk at a warehouse door and he was engaged in loading it. A truck of the city was parked behind respondent's employer's truck and in close proximity to it, partly on the sidewalk and partly on the street. The truck of Morrall Furniture Company was driven around the corner, struck the city truck, drove it forward and respondent was caught between it and his employer's truck.

It is elementary that a municipality, which the City of Beaufort is, partakes of the immunity of the State from actions in tort, 14 S.C.Dig., Municipal Corporations, k723 et seq., p. 324 et seq., and is subject to an action such as this only when the action is expressly permitted by statute. Ibid. As to the construction of any such statute, and particularly this, see Bell v. City of Anderson, infra, 226 S.C. 145, 84 S.E.2d 343.

The statute here invoked and under which this action was brought is Section 47-71 of the Code of 1952, in pertinent part as follows:

'Any person suffering bodily injuries, property damage or death by reason of the careless or negligent management or operation of any motor vehicle under the control of any municipal corporation, engaged in the business of such corporation, may recovery in any action against such corporation such actual damages, not exceeding four thousand dollars, sustained by reason thereof. No recovery may be had hereunder if the plaintiff has brought about such injury, death or damage by his negligence or negligently or carelessly contributed thereto or if such plaintiff's injury or damage was brought about by the contributory negligence of any third person. * * *' (Emphasis added.)

This case appears to be the first to reach this court involving the above quoted portion of the statute. The concluding limitation provisions, which are not quoted, were the subject of Bell v. City of Anderson, supra, 226 S.C. 145, 84 S.E.2d 343. The present question was not presented in that case. The statute had its origin in Act No. 180 of 1949, 46 Stat. 272, so it is rather recent. In addition to the Bell case, it was cited in Mullins Hospital v. Squires, 233 S.C. 186, 104 S.E.2d 161. The key provision of the statute, so far as this case is concerned, is, as will be seen, the last provision quoted and emphasized above, 'No recovery may be had * * * if such plaintiff's injury or damage was brought about by the contributory negligence of any third person.'

The amended complaint alleges, following the statute, that respondent's injuries were not caused by his negligence, etc., and, continuing, quoting from the complaint, 'Nor were they caused by the contributory negligence, carelessness or recklessness of any third person but, on the contrary, they were due to and caused by, and were the direct and proximate result of, the joint and concurrent negligence, carelessness and recklessness of the defendants, W. A. Morrall, John F. Morrall and Norman G. Morrall and the City of Beaufort, South Carolina, their agents and servants, in the following particulars,' etc. Then follows the specifications of negligence, first of...