Turner v. A B C Jalousie Co. of N. C.

Decision Date01 April 1968
Docket NumberNo. 18774,18774
Citation160 S.E.2d 528,251 S.C. 92
CourtSouth Carolina Supreme Court
PartiesJulia C. TURNER, Respondent, v. A B C JALOUSIE COMPANY OF NORTH CAROLINA, Inc., Appellant.

Abrams, Bowen & Townes, Greenville, for appellant.

Hooks & Hooks, Mullins, for respondent.

MOSS, Chief Justice.

This is an appeal from an order of the trial judge overruling a demurrer to the first cause of action alleged by the respondent in her complaint.

The first cause of action alleges that one Jim Tumlin, an agent of the appellant corporation, while acting in the course of his employment, visited the home of the respondent and her husband and offered to sell and install aluminum siding on their home at a special sales price of $530.00. It is alleged that Tumlin represented to the respondent and her husband that the siding was made of the best quality of aluminum. The respondent and her husband entered into a written contract with the appellant relying upon said representation wherein and whereby the appellant agreed to deliver and install the siding on their home. It is further alleged that Tumlin returned to the respondent's home approximately one hour after the execution of the contract and told the respondent and her husband that the aluminum siding which he had previously sold them was made of a cheap grade of tin and it would cost approximately $2,800.00 to install quality aluminum siding on their home. It is then alleged that the respondent and her husband refused to enter into a new contract at the increased purchase price and that they told the agent of the appellant that he had misrepresented the quality and texture of said siding which they had contracted to purchase and that because thereof the contract was null and void and they would not allow the appellant to install tin siding on their dwelling. It is then alleged that the said agent immediately became engaged and in a loud and threatening voice, and with vile, profane and abusive language, threatened to bring suit against the respondent and her husband, sell their said dwelling house and throw them and their children into the street.

It is further alleged that as a direct and proximate result of the willful, wanton and malicious conduct of the agent of the appellant that the respondent became greatly frightened and terrified, went into shock, and her nervous system collapsed, necessitating hospital and medical care and treatment, thereby incurring medical expense and since said time has been in a highly nervous state and condition and will continue to suffer in the future from said nervous condition, resulting in loss of time from her employment and inability to perform her duties in the usual manner.

The appellant demurred to the first cause of action on the ground that the allegation as to verbal abuse and cursing was not sufficient to state a civil cause of action there being no allegation of assault. The appellant also moved to strike a portion of the complaint on the ground that such did not allege a threat of physical violence nor that any traumatic injury was received by the respondent. The trial judge considered the demurrer was the motion to strike as raising the same question and treated the motion to strike as a demurrer. The demurrer came on to be heard by The Honorable Clarence E. Singletary, Presiding Judge. He overruled the demurrer and held that the first cause of action contained allegations sufficient to constitute a cause of action. It is from this order that the appellant prosecutes an appeal.

It is elementary that in passing upon a demurrer the court is limited to a consideration of the pleadings under attack. All of the factual allegations thereof that are properly pleaded are for the purpose of such consideration deemed admitted. When a fact is pleaded whatever inferences of law or conclusions of fact that may properly arise from it are to be regarded as embraced in such averment. Sandy Island Corporation v. Ragsdale, 246 S.C. 414, 143 S.E.2d 803. Where a demurrer is interposed to a complaint or a motion made to dismiss the same on the ground that it failed to state a cause of action, the complaint must be liberally construed in favor of the pleader, and sustained if the facts alleged, and inferences reasonably deducible therefrom, entitle the plaintiff to relief on any theory of the case. Everett v. White, 245 S.C. 331, 140 S.E.2d 582, and Pleasant v. Mathias, 247 S.C. 124, 145 S.E.2d 680.

It is the position of the respondent that she has stated a cause...

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22 cases
  • Phillips v. United States
    • United States
    • U.S. District Court — District of South Carolina
    • June 21, 1983
    ...578, 239 S.E.2d 73 (1977); Rhodes v. Security Finance Corp. of Landrum, 268 S.C. 300, 233 S.E.2d 105 (1977); Turner v. ABC Jalousie Co. of N.C., 251 S.C. 92, 160 S.E.2d 528 (1968), concern "`tortious actions in which the sole damages alleged are those of mental anguish ....'" Ford v. Hutson......
  • Todd v. South Carolina Farm Bureau Mut. Ins. Co.
    • United States
    • South Carolina Court of Appeals
    • March 28, 1984
    ...claim is determined by the evidence produced at trial rather than the allegations of the pleadings. Turner v. A B C Jalousie Company of North Carolina, 251 S.C. 92, 160 S.E.2d 528 (1968). Neither the trial court nor this Court is at liberty to substitute its subjective and provincial sensib......
  • Harris v. Jones
    • United States
    • Maryland Court of Appeals
    • December 9, 1977
    ...v. Pollard, 259 Or. 54, 485 P.2d 28 (1971); Forster v. Manchester, 410 Pa. 192, 189 A.2d 147 (1963); Turner v. ABC Jalousie Company of North Carolina, 251 S.C. 92, 160 S.E.2d 528 (1968); First National Bank of Jacksonville v. Bragdon, 84 S.D. 89, 167 N.W.2d 381 (1969); Medlin v. Allied Inve......
  • Chaney v. Fields Chevrolet Co.
    • United States
    • Oregon Supreme Court
    • May 12, 1971
    ...Insurance Co., 10 Cal.App.3d 376, 89 Cal.Rptr. 78 (1970); Rugg v. McCarty, Colo., 476 P.2d 753, 756 (1970); Turner v. ABC Jalousie Company, 251 S.C. 92, 160 S.E.2d 528 (1968); Lyons v. Zale Jewelry Co., 246 Miss. 139, 150 So.2d 154 (1963); Delta Finance Co. v. Ganakas, 93 Ga.App. 297, 91 S.......
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