Terrell v. City of Orangeburg

• Decision Date: 04 June 1935
• Docket Number: 14077.
• Citation: 180 S.E. 670,176 S.C. 518
• Parties: TERRELL v. CITY OF ORANGEBURG.
• Court: South Carolina Supreme Court

180 S.E. 670

176 S.C. 518

TERRELL v. CITY OF ORANGEBURG.

No. 14077.

Supreme Court of South Carolina

June 4, 1935

Appeal from Common Pleas Circuit Court of Orangeburg County; C.J Ramage, Judge.

Action by Walter C. Terrell against the City of Orangeburg. From an order sustaining a demurrer to the complaint, plaintiff appeals.

Reversed and remanded.

L. A Hutson, of Orangeburg, for appellant.

Sims & Sims, of Orangeburg, for respondent.

BAKER Justice.

This is an appeal from an order sustaining demurrer to complaint of plaintiff-appellant, on the ground that it does not state a cause of action. The complaint contains 15 paragraphs; but briefly, the material allegations therein contained are as follows:

The defendant is a municipal corporation. It keeps and maintains a water plant to supply its needs and that of citizens. On April 12, 1933, it had several of its employees watering shrubbery and washing and cleaning out a large pool and fountain in a small park located in the heart of the business section of defendant, and that in order to obtain the water a large hose was attached to and connected with a hydrant on the side of the sidewalk and stretched across the sidewalk to the park; that after the water was cut off, the hose became flat and lay flat on the sidewalk, and was allowed to remain upon and across the sidewalk, without warning of any kind to those using the street of its presence, the hose thus left lying across the sidewalk rendering the street or sidewalk in an obstructed, dangerous, unsafe, and defective condition that defendant, on many occasions prior to this occasion, when it had procured water from the same hydrant to water shrubbery and wash and clean out the pool and fountain in the same park, had allowed the hose to remain attached to the hydrant after the water had been cut off, and the danger of so doing had been called to its attention. That plaintiff, while walking on the sidewalk, struck his foot against the water hose attached to the hydrant and was tripped by and fell over the hose, thrown to the ground, and seriously injured, and the injuries to plaintiff are set forth in detail. Plaintiff also alleged in his complaint that his injuries were not occasioned by his own negligent act, or that he negligently contributed thereto.

The statute which enables one to bring suit against a municipal corporation is section 7345, Code 1932; so much thereof as is necessary to a decision of this case being as follows:

" Any person who shall receive bodily injury, or damages in his person or property, through a defect in any street, causeway, bridge or public way, or by reason of defect or mismanagement of anything under control of the corporation within the limits of any town or city, may recover, in an action against the same, the amount of actual damages sustained by him by reason thereof. [Irrelevant sentence omitted.] Provided, The said corporation shall not be liable unless such defect was occasioned by its neglect or mismanagement:

Provided, further, Such person has not in any way brought about any such injury or damage by his * * * own negligent act or negligently contributed thereto." Clearly the defendant was not engaged in repairing its streets, so the only question is, Did the water hose left lying upon and across the sidewalk from time to time, after notice to the defendant of the danger in so doing, and on the occasion plaintiff alleged he was injured, constitute a defect in the street in contemplation of the statute?

In Reeves v. City of Easley, 167 S.C. 231, at page 235, also reported in 166 S.E. 120, 121, Mr. Justice Bonham, writing the opinion of the court, had this to say, and in which the writer hereof fully concurs:

"There are two lines of cases in the construction of this statute and the kindred one affecting counties. The one standing for a strict compliance with the provisions of the enabling statute, and the other for a more liberal interpretation and application. Apparently no effort has ever been made to reconcile these differences of opinion, and hence there are the two lines of apparently irreconcilable cases.

Which of them is founded in reason and is upheld by the authority of the statute?"

Mr. Justice Bonham then proceeded to exhaustively and most ably and painstakingly review the cases construing this statute, and we do not hesitate to quote from this opinion, (quoting): "It is the established law of this state that a city, being an integral part of the sovereignty of the state, may not be sued in tort, except in such cases as the right of action is expressly given by statute, and in such cases as are protected by the provisions of article 1,§ 17, of the Constitution to the effect that: 'Private property shall not be taken for private use without the consent of the owner, nor for public use without just compensation being first made therefor.' When a statute gives a right of action against the state, county, or city, or other subdivision of the sovereign authority, it is the rule of the law that such statute must be strictly construed. 'This court has held that an * * * act * * * in derogation of the sovereign power of the state, must be strictly construed.' Ancrum v. State Highway Department, 162 S.C. [504], 507, 161 S.E. 98, 99."

After a thorough review of the cases construing and interpreting the...