Ready v. Barnwell County

• Decision Date: 21 September 1932
• Docket Number: 13477.
• Citation: 165 S.E. 676,167 S.C. 62
• Parties: READY v. BARNWELL COUNTY.
• Court: South Carolina Supreme Court

165 S.E. 676

167 S.C. 62

READY v. BARNWELL COUNTY.

No. 13477.

Supreme Court of South Carolina

September 21, 1932

Appeal from Common Pleas Circuit Court of Barnwell County; W. H Townsend, Judge.

Action by J. F. Ready, as administrator of the estate of Eugene Ready, deceased, against Barnwell County. From judgment for defendant on demurrer to plaintiff's complaint, plaintiff appeals.

Reversed and remanded.

Harley & Blatt, of Barnwell, for appellant.

Brown & Bush, of Barnwell, for respondent.

CARTER J.

This action, commenced in the court of common pleas for Barnwell county, July, 1931, by J. F. Ready, as administrator of the estate of Eugene Ready, deceased, Plaintiff v. Barnwell County, Defendant, is a suit for damages in the sum of $5,000 "on account of the pain and suffering and death of the plaintiff's intestate as the result of injuries received while he was engaged in driving a motor truck hauling logs over one of the public roads of Barnwell County and when a bridge collapsed and gave way." The case was heard by Judge W. H. Townsend on demurrer to the complaint October 5, 1931, at which time his honor issued an order sustaining the demurrer and dismissing the complaint. From the said order the plaintiff, upon due notice, has appealed to this court, imputing error to Judge Townsend in sustaining the demurrer.

The grounds of the demurrer were as follows: "That the complaint herein fails to state a cause of action in that it appears upon the face of said complaint that plaintiff's intestate was at the time of the injury which caused his death engaged in hauling logs over one of the public roads of Barnwell County in violation of the statute law of said State and that said unlawful act was the proximate cause of the injury and death of plaintiff's intestate."

In passing upon the demurrer, the circuit judge did not, in his order, discuss the issue presented, but simply, in a short order, sustained the demurrer and dismissed the complaint. As we understand the position of respondent, and we assume that his honor's holding was to the same effect, the injury and death of the plaintiff's intestate was due to his "unlawful act in driving the motor truck loaded with logs upon the bridge in question." To sustain this position that it was unlawful for the plaintiff to drive the motortruck loaded with logs upon the bridge in question, respondent calls attention to section 1667 of the Criminal Code of 1932, which reads as follows:

" Hauling Timber, etc., over Highways of Dillon, Lee, Orangeburg and Barnwell Counties Regulated.--It shall be unlawful for any person or persons, engaged in the sawmill, lumber, timber or logging business, to haul, convey or transport any logs, timber or lumber on or over any of the public roads or highways of Dillon and Lee and Orangeburg and Barnwell Counties, with any vehicle having less than four wheels, or to haul, convey or transport any logs, timber or lumber on or over any of the public roads or highways of said counties in any manner, except as hereinafter provided: Provided, That the county board of commissioners, in their discretion, may permit, for a definite period of time, the transportation of logs, timber or lumber otherwise than herein provided; the party so transporting such logs, timber or lumber shall be required to file a good and sufficient bond in an amount sufficient to cover the maximum possible damage to the roads, bridges and highways over which such transportation is allowed or permitted, and conditioned to restore the said roads, bridges and highways to their original condition. Any person violating any of the provisions of this section shall be guilty of a misdemeanor, and, upon conviction, shall be punished by a fine of not less than five dollars, nor more than one hundred dollars, or by imprisonment for not more than thirty days."

Without first getting permission from the board of county commissioners of Barnwell county, in compliance with the conditions of the above section of the Code, it is clearly a violation of the law to haul logs, in the manner alleged in the plaintiff's complaint, over the road in question in said county, but it does not follow, as a matter of law, that the plaintiff is barred from recovering in this action. It is a generally recognized rule that the violation of a statute although declared negligence per se, must be shown to have been the proximate cause of the injury, or at least a contributing proximate cause, in order to hold a person violating such statute for damages thereunder. See the case of Cirsosky v. Smathers, 128 S.C. 358, 122 S.E. 864 and authorities therein cited. In this...