Pleasant v. Mathias, 18440

• Decision Date: 17 December 1965
• Docket Number: No. 18440,18440
• Citation: 247 S.C. 124,145 S.E.2d 680
• Parties: Russell G. PLEASANT, Respondent, v. David J. MATHIAS and Margaret C. Mathias, d/b/a Mathias Sandwich Shop, Appellants.
• Court: South Carolina Supreme Court

Page 680

145 S.E.2d 680

247 S.C. 124

Russell G. PLEASANT, Respondent, v. David J. MATHIAS and Margaret C. Mathias, d/b/a Mathias

Sandwich Shop, Appellants.

No. 18440.

Supreme Court of South Carolina.

Dec. 17, 1965.

Turner, Padget, Graham & Laney, Columbia, for appellants.

Malcolm E. Rentz, Charles B. Bowers, Columbia, for respondent.

BUSSEY, Justice.

This is an action to recover damages for allegedly serious and permanent personal injuries, sustained by the plaintiff while engaged in attempting to perform a gratuitous service for the defendants, in the repair of a broken glass door at the front of a sandwich shop operated by the defendants. The defendants demurred to the complaint, for insufficiency of facts to state a cause of action, and have appealed from an order of the circuit court overruling the demurrer.

It is elementary that the complaint must be construed liberally in favor of the pleader and sustained if the facts alleged and the inferences reasonably deducible therefrom entitle the plaintiff to relief on any theory of the case. See Everett v. White, 245 S.C. 331, 140 S.E.2d 582; Player v. Player, 240 S.C. 274, 125 S.E.2d 636; 15 West's South Carolina Digest, Pleading, k34, 204(2).

We summarize the allegations of the complaint in the light of the foregoing principles. The defendants at the time were engaged in business under the name and style of Mathias Sandwich Shop, and the front door glass thereof was cracked and broken. The defendant, Margaret C. Mathias, after unsuccessful attempts to have the glass replaced or repaired by one or more glass companies, acting by and through an agent one Taylor, called the plaintiff and asked him to come and place something temporarily at the door. At the time the said Margaret C. Mathias knew the plaintiff was totally and completely inexperienced with respect to the take she called him to perform and the dangers thereof. The plaintiff gratuitously responded to defendant's request, and when he arrived at the premises neither the said Taylor nor the said Margaret Mathias were present. In attempting to remove the glass from the door, so that he might place a piece of plywood over the opening, the glass shattered, severely lacerating and cutting the forearms of the plaintiff.

Inter alia, the complaint alleges that the defendants knew, when they asked the plaintiff to gratuitously assist them, of the inherently unsafe and dangerous conditions then existing. They failed to provide plaintiff adequate assistance; the failed to furnish him any proper tools, equipment or appliances which the defendants knew were required to do the task; and they failed to warn the plaintiff, whom they knew to be uninformed and inexperienced, of the dangerous nature of the task to be performed by the plaintiff. The conduct of the defendants in the foregoing particulars was negligent, reckless and willful, and the proximate cause of plaintiff's injuries.

The defendants argue that the demurrer should have been sustained, first because they owed no duty to the plaintiff, or, if any duty was owed, such had been fulfilled; and secondly, that the plaintiff had assumed the risk of injury, or that any injury sustained by him was proximately caused by his own negligent acts.

With respect to the appellant's first point, it is mistakenly assumed and contended, that plaintiff, under the facts alleged, was merely an invitee and that the only duty owed him was to advise him of the condition of the door, which duty was performed at the time he was called. For the purpose of consideration of the demurrer, it cannot be said that the plaintiff was merely an invitee. His sole purpose for going upon the premises was to perform a service for the defendants at the request of the defendants....