*1 163 et al. v. Carrorr Cardweer 1926 the foot of his de- given plaintiff apply Leave necessary for that hereafter cree further orders be may out the terms thereof. carry Burnett, and for Galbraith, Messrs. Burnett & & Evans 127 cite: purposes: Transaction speculative appellant, for 1316, P. 6. C., 139. selection: 39 Right Cyc., Cases S. C., C., 370; C., 77 64. S. S. distinguished: 495. Overruled: Ruse, for
Messrs. & respondent. Christopher March 1927.
The Mr. of the Court was delivered opinion Justice Blease. cause,
After a careful of the record in this we reading Mclver, are the decree de- convinced that of Hon. Edward ceased, all the circum- Circuit Judge, proper in full. stances. decree will be reported this Court is all the exceptions judgment overruled, and Common that the decree Court same is hereby be and the Pleas Spartanburg affirmed. Watts, Coth- Mr. Messrs. Chief Justices Justice Acting
ran Mr. Stabrer, Associate Justice Purdy concur. I think the case of Schmid
Mr. Cothran: Justice be distinctly and should v. Whitten principal wrong overruled. AL., ET CALDWELL SAME ET v.
CALDWELL AL. CARROLL (Two Cases) McMILLAN v. SAME (137 444) Refusing Appeal to Make Def- Motion More and Error —Order Appealable. refusing motion to —Order inite and Certain appealable. is not definite and certain make more et al. v. Caldwell
Motion Highways damages for loss sustained. Road.—Both contractor or employees *2 gent contract with Acts —Contractor contractor and Contractor in therefor county or working county Employees and are liable to liable both in roads in accordance Liable Working negligent respond acts of Negli- in Pleading Surety's Liability — Matter Can- Defense Liability surety company, by Determined Demurrer.' — by under bond is a matter of defense determined which cannot be interposed complaint. demurrer Colleton, October, 1925. Affirmed. Wilson, Before J., another, actions Caldwell and Separate by Susan Caldwell, Caldwell, A. D. Susan W. and by Elizabeth McMillan, Carroll and others. Erom an against E. L. J. order demurrers and complaint motions to make overruling certain, more definite and defendants in each case appeal. Affirmed. Complaint
Motion ob E. Carroll Have ti-ie Made J. and More Deeinite Certain in (1) By what the American stating respect surety, is liable the bond for him Surety Company, written said out surety company, by setting so much of the liability said bond as provides for the tort company alleged complaint. By names of the (2) stating the defend- agents ant Carroll who committed tort. alleged E. J. in what manner the fire
(3)- By stating out or got away from the Carroll, agents defendant and what E. J. said were at the time agents tort doing was alleged committed. By what manner the
(4) stating Colleton could be made a and held liable for such tort party as is the absence of a statute such creating liability. et al. Carrole
Caedweee
1(53] Company Surety
Motion oe American Com- Make plaint More Definite Certain 1. By the names and servants of alleging agents Carroll, defendants Colleton or either B. J. them, who set out the ñre and committed the al- acts in the third leged paragraph complaint. By what manner the fire set or alleging was out out,
put and for what was either out purpose put Carroll; servants of Colleton County, B. and whether it necessary part constructing that the fire out, road should be set in what particulars such existed. necessity
3. the By connection or the alleging between relationship defendants Carroll, Colleton and County and whether B. J. the road was constructed them or being jointly, Carroll; Colleton or County, and what also con- B. J. nection Colleton had with the construction County of road that would it under bring any legal liability acts and in the things alleged complaint constituting cause of of action plaintiff. By what American the defendant alleging particular liable for the plaintiff negli- acts
gent of defendants Colleton and County B. J. Carroll, servants, their of on account through bond issued as surety for defendant Car- B. J. roll; what the said acts of particulars negligence constituted a the defendant liability against American bond; under its said Surety out Company, by setting provisions in the such of the said bond under liability is claimed thereunder on account of the acts of in the negligence alleged complaint. County Complaint of
Motion Colleton Make More Definite Certain or Whether (a) Carroll was B. J. or or servant officer of Colleton or whether
agent County, et et al. Carrole Caedweee C.
Demurrer re- of road not he a contractor in the building or ferred to in the complaint. contractor, to if the Carroll was That said L.
(b) he under what terms conditions contracted allege road, and what officers Colleton said building a contract behalf entered into County such him. County, road more public
(c) By particularly designating on point referred to in the at what by stating and whether or line road terminated said Bamberg of the highways designated not the said road was one Caroliná, known the act General South Assembly Act, Acts of as the Pay-As-You-Go appearing 1199.. p. officers, or serv- what (d) By agents, alleging specificálly fire out the ants of the defendant Colleton said set the right or allowed same to out along negligently put the said way road. not the defend- whether or (e) By alleging specifically officers,servants, its or agents, ants Colleton County, through fire, or said fire to be out the allowed the set whether they of the said road. other out In put along way right words, elect and one of these other allege charges, but both. *4 acts particularity
(f) By specifically alleging of al- the defendant Colleton out which the said of willfulness, wantonness, carelessness, and leged negligence, arose. recklessness
That the said will be based complaint motion upon action. this oe Demurrer L. Carrole Because it face of the complaint (1) apparent liable of Colleton could not held defendant county a tort is al- a defendant in this action such as as party in the enact- absence a complaint, legislative leged and a such liability allowing recovery ment creating expressly et al. v. Cardwerr Carrorr Pall
therefor; that the defendant of Colleton so should county be dismissed from the summons and complaint. Because on the face does not
(2) complaint ap- that the pear defendant American would Surety Company ¡be liable under the law for such a tort as is stated in the or for tort out the transaction re- complaint, any arising to in ferred in so much aas complaint, surety company, law, under the is not liable for tort committed its in the absence of a such bond principal provision in specific therefor, and no such provision alleged complaint. that such to the defendants complaint, respect
So county Colleton and American does Surety Company, not state facts sufficient to constitute a cause of action in them; and, besides, to either of there is a respect misjoinder on the parties face of the so that the apparent complaint; defendants American Surety Company county Colleton should be dismissed from the summons and com plaint. Company Surety oe
Demurrer American That the does not state facts sufficient to (1) complaint constitute cause of action either of the defend- Colleton, ants American Surety Company county and that on the face of the there is a complaint misjoinder parties, and the defendants Ameri- complaint against can of Colleton should be dis- missed. Because the of Colleton cannot liable be held
(2) for the acts of allegations complaint negli- therefrom results gence alleged complaint, ¡because there is no lia- such statutory provision creating therefor, bility permit recovery should be dismissed as to such defendant. Because under the facts
(3) does not that the defendant American Com- appear Surety *5 could be for the acts the re- liable and pany negligence therefrom as in the or for complaint, any sults alleged C. 139
12^S. — et et al. v. Carroee CaedwEEE
Demurrer —Order and in the things from matters arising alleged face it not on the the com- complaint; appear does defendant became liable under that said its bond plaint Carroll, tort committed or any by C. servants, or that said acts arose reason of of the road or were a thereof. necessary construction part oe Demurrer Coleeton that it the face the com- In does (a) appear upon damage that the received or plaint bodily plaintiffs injury in their or a defect or property through negligent person of a or or repair bridge, any ferry operated causeway the county. re- In that it that the does
(b) appear plaintiffs or in their or bodily person ceived any injury prop- damage erty a defect of a negligent repair highway. or through liability is no In there statute imposing
(c) any al- under the facts the defendant upon . in the leged complaint. In that the its face that complaint shows
(d) upon not received while the injuries of were complained plaintiffs were the said road. public otherwise traveling- using In that is not that the
(e) said road was a highway. public In that the its face that shows
(f) constructed, being said road was and was not being public in the said fails to defect repaired, allege public road thereof. or any negligent repair Overrueing Motions
Order Demurrers causes, of all the above-entitled By parties consent four to make the several more definite notices complaints herein, and certain, each of the served defendants to the several complaints four demurrers interposed herein, were causes each of the defendants several C., on me at October Orangeburg, heard before these for the several vigorously argued Counsel parties *6 et al. v. CardweXvR Carrolu FaU me, I have
matters before motions given and de- careful consideration. murrers most
I am satisfied that several motions these in causes to make the more definite and certain should be complaints is to provision overruled. Code the effect that the Court to be made more definite and may require pleading certain if amendment by allegations pleadings so indefinite or uncertain that the precise are nature of However, is not careful examination charge apparent. in contained the several in the allegations complaints
above causes will are neither show indefinite nor they uncertain, and the facts so are stated to leave no as doubt in the any mind of reasonable person what precise nature is. charge actions, four demurrers these interposed among
other the issue that things, raises allegations do not come within the of that sec- provisions 2948, tion as of the Code known found Volume Section 1922, Code for the providing of damages against recovery section, defects, counties for etc. This which was read to me in follows: as argument,
“Any person who or damage shall receive bodily injury in or a defect person or negli- property through gent of a repair or or of causeway, bridge, ferry any operated by recover an action may county, amount actual sustained himby damage reason thereof: not in person any Provided such has way about such his own act or brought injury damage by or If such in any contributed thereto. defect negligently road, or or causeway bridge, as afore- ferry any operated said, occurred, existed before such such or injury damage shall not damage injured be recovered so if person further, his load exceeded the ordinary weight; provided, that such shall not be defect liable unless such its occasioned or provided, neglect mismanagement; further, that if in case it i's this section any brought et al. v. Caldwell
Arguments occurred the super- made to that before the damage appear or officer or of such who is or county, visor other offices law, had been notified writing thereunto charged by or citizen that the highway, causeway bridge, aforesaid, or on ferry damage operated *7 defective, occurred, or needed the burden of repair, be upon officials shall to the proof negligence show, such defect fact either that did exist, or that a or that it had repaired, properly been had not notice within reasonable time since such elapsed repairs.” which to make such I am that there is no merit grounds satisfied each forth in the several demurrers. set action, these forth a cause of only causes not sets good 94, but supra, within Section coming provisions also cause of action accordance a good alleges Court in the announced follow- principals Supreme 19, District No. Marion cases: ing School E., Faust County, 103 767. v. Richland County, Marion S. E., 151, cases the same 109 announcing S. subsequent principles. ordered,
It is therefore decreed adjudged, and cases to make the motion in each of above certain, more definite and and the demurrer interposed by defendants, be, in each case the same hereby the several are, overruled.
It that the defendants American Surety is further ordered be, they Carroll and Company, E. are, 20 from the date of this order within days hereby given answers to the herein. complaints file Felder, for & Berry, ap- Messrs. & Lide Wolfe to sue Statutory authority county: cite: necessary pellants, C., 77 Code, 2948. Cases Civ. S. distinguished: Sec. 251; C., 382. 114 S. Moofer, cites: Liability
Mr. also appellants, J. M. Code, to Sec. 2948 Civ. Amendment highway: for defects et al. v. 171 CaedwEEE Carroee 1926 Stat., 24 Not 287. liable for nonfeasance misfeasance C., except C., 213; statute: 20 117 269. S. S. of officers C., 313; Id., 498; C., Statute construed: 96 strictly 75 S. S. 560; C., C., 27 419; 100 S. 304. Who recover: may S. C„ 298; 43 C, 251; 127 C, 398; C., 134 S. 135 S. S. S. 337; C., 114 382. S. on Sustained 117= wrong grounds: C., 261; 77 C., 281; C., S. 111 S. 7. where S. Recovery no just C., compensation: 89 511. “Public 71 S. use:” C., W., 485. 778; S. 20 Extent C. 156 damages: J., S. 1060; W., 372; Trans., 143 538; Pac., 42 S. 411.
Messrs. R. M. Pishburne, Jefferies, Howell & respondents, 354; cite: C., complaint”: “Sufficiency S. Code, S. 172. Within 1922: 77 2948 Civ. Sec. E., 767; C, 281; C., S. Recovery where E., 151; 114 no just compensation: 109 S. *8 E., 857; E., E., E., 403; 122 100; S. 123 132 S- S. S. S., 221 U. 636. 10, 7,
March 1927. On for petition rehearing April 1927. opinion Court was delivered Mr. by Justice
Watts.
This is an from an order of appeal Wilson Judge 1 demurrers motions to make the overruling and com more and certain.
plaints definite order His will be it states the matters on reported; him. The order passed by motions to make more and certain is not refusing definite state a cause of appealable. complaints action good all of appellants. all the The demurrers admit facts stated com ; in addition to the Honor, and authorities cited his plaints by his sustain order: Derrick following Co City of E., C., 29; 114 lumbia, 122 857. McNinch v. S. S. City of E., C., 54; Columbia, 122 403. 128 Kneece v. S. S. City of E., C., 375; Columbia, 100. S. Wilson v. City C., 271; Laurens, et al. v. Carrorr CardwErr ' Dissenting Opinion act the result the negligent the fire If him in working by Carroll or the hands employed between under contract County, Colleton roads of their scope Carroll and Colleton County, acting and then both Carroll authority employment, the loss would be liable respond or willful by by negligent sustained the respondents him, under by acts or the hands employed wanton of Carroll his au scope control and supervision acting of the American to the bond As thority. itself At the trial the bond will show York: New for; that is matter became liable
what surety company cannot be determined company defense the demurrer them. interposed overruled, and affirmed. All judgment exceptions Acting and Mr. Brease Stabrer Messrs. Justices Ramage concur. Associate Justice This (dissenting). appeal Mr. Cothran Justice Honor, Wilson, from an order of his Judge overruling in the four demurrers defendants- interposed by separate entitled, them motions to re- refusing cases above to be made more definite and certain. quire complaints are identical The four cases named in character. It will stated, therefore to consider the case first be covenient Susan al., al. v. et A. the result such Caldwell L. made to each of other consideration being applicable *9 three cases. substantially as
It is in the follows: complaint 1925, the and August That on defendants County were a road engaged constructing Colleton with- from to the County, in the Bells leading Bamberg line, directly road Colleton public County, that or about said date County; on “the de- control Carroll, and fendants their and L. servants, willfully, carelessly, recklessly, negligently, and
CardweXi, et al. v. Carrott 1G3] fire, set to out out or. allowed fire
wantonly put negligently of the above described (set out?) along right way road, fire in or from the its spread origin point road, near to the tract the said right public way described, of land above said completely destroying upon tract of to wit land (itemiz- following improvements, outhouses, house, and other ing damage dwelling ; to the extent the defendant property, of $13,100) American
Carroll for reason of all claims arising construction of the referred to. road defendants moved for .order severally requiring to make the more and cer- definite plaintiffs
tain stated, in like demurred manner particulars certain stated The motions grounds. Wilson, Honor, heard Judge demurrers were by his de- an order refused the who in motions overruled murrers. Prom this have order defendants appealed.
It the de- will to consider the motions and necessary murrers as made severally respective separately, defendants.
In the of Mr. declared that Watts opinion Justice order to make “The motion more refusing (the complaint) definite and certain is not and for this reason appealable,” the order to this matter from is sum- appeal relating dismissed. marily rule, nature
As this orders appealable; general rule, as the Court in exceptions general but there are E., 711, Co., v. R. thus Pendleton declares: held that such an has been order uniformly “It ” * * * cases], final [citing judgment before
appealable merits, as was held in unless the order involves [citing ” * * * cases]. Co., of Bolin R. the -cases It is significant *10 al. v. 174 Carrorr CardwERR Dissenting Opinion 273; C., C., 222; E., 665; Mills, Hix Belton 69 43 v. S. S. 430; Mills, C., 54 E., 96; 74 Grendel 48 S. Shaver S. Co., C., 562; E., 610; v. R. S. Cooper S. S. 704, all to require from orders refusing involved appeals No more definite and certain. to be made complaints to the appealableness made as question have been appears orders. 'The Court have assumed of the appears order the merits and were upon matters involved therefore that in appealable appealable. passing So de several the motions of the ness the order refusing fendants, it is essential that the whether grounds question merits be of the motion’involve the considered. then, motions several up, separate
Taking defendants: motion of the Carroll for an order The to make the more definite
requiring plaintiffs certain. The and fourth of the affect the first motion grounds of the American and of the County liability Colleton, matters with defendant Carroll not concerned. is that the names second agents ground
defendant Carroll who committed tort should alleged The issue is be stated. decided the contention of Co., C., Bolin v. R. 222; case of appellant S. E., 665, which is syllabus follows: “An defendants’ agents and did allegation servants amendable motion to make an act more definite and the names of the by alleging agents certain and servants.” See, also, Mills, v. Grendel Shaver E., 610. is that the third ground should state in the fire out away manner from the got
what what were they doing the defendant time the committed. tort was *11 et al. v. CaedwERR Carroer
In the Brazier, C., 122, case of v. Blakely quoted approval Lynch Mills, Spartan E., 93, the the Court the phrase defining “involving merits,” said: word 'merits’
“The bears the naturally sense including all that the claim may in reference party to his right case.”
In view of the alternative statement that complaint the and servants of etc., Carroll out set negligently, fire or allowed fire negligently out, to be put along I right that way highway, think the defendant had as right, defense, to necessary of his preparation know the circumstances upon which the relied plaintiffs fix him. liability upon
In the case Pendleton the Court said: “It is conceivable that a case be might presented the order the motion to make more refusing definite and n certain instance, be might immediately where appealable, makes a general charge negligence, the defendant moves to have the more complaint made n definiteand certain, particular acts of alleging neg- for, relied ligence motion, upon; absence of such which the defendant may be to defend.” prepared
2. The motion of the defendant American Com- Surety for an order pany to make plaintiffs com- requiring more definite and certain. plaint
The first of the motion ground is practically same as the second of the defendant ground motion and Carroll’s should be dismissed for the same reason as that ground .should be. is second ground practically same fourth motion, Carroll’s
.ground and should for the sustained same reason as that should ground be.
The third no ground importance to the American et al. v. Carrodd CardwEur
Dissenting Opinion of its defense. preparation allegation is that tort joint true; may It be that that County. as an is responsible contractor independent Garrofl alone is not; or for other reasons Carroll event, In if the American Com- responsible. Surety all matters connected with for Carroll in pany the relation of Carroll construction of the highway, *12 the is matter no to it. a of County consequence the omissions of facts
The fourth of complains ground the American upon Surety which would esablish liability that there is for of Carroll. I think delicts the Company as merit in the of the surety company very contention great is the to All that the that this alleges ground. L,. for any “is for the defendant Carroll surety company the construction the claims reason of all arising a to.” The bond hereinafter referred execution roads is is more a than what alleged, nothing is facts. If the action had from undisclosed conclusion legal alone, it have would been surety company been against the a that certain the com- day surety to on order allege to County, bond underwriting pany gave contract entered into be- Carroll obligations least, of the bond and them with a description, tween contract; and a statement-of the which. particulars of the It contract. seems to me that had defaulted his Carroll defense the en- its is company in the preparation what obligation plaintiff upon suing; titled know are; the that terms of contract between obligation what claimed, in which County; it is particulars Carroll contract; breached has grounds that upon Carroll claim to hold surety company which the plaintiffs words, full a other as statement their such breaches—in if had suit as brought action they surety- cause alone. company
CapdwEpp Carropp 3. The of the motion defendant Colleton an County, order the plaintiffs to make the more requiring definite and certain.
The first motion ground that County Colleton was entitled to relation the know what plaintiffs claim is, it sustained to Carroll; that the defendant that whether the to- plaintiffs intended rely upon theory an an independent was contractor or agent matters I think County of. that this was complained matter, natural and very County to which the important was entitled tO' informed in order its properly present defense; and to it motion should have been regard granted. Carroll either con- independent manifestly tractor, under contract with he County, was an agent employed do' the work or to it. supervise was entitled to> know relied. It theory to ascertain plaintiffs impossible that from the complaint. character, is of like and the second motion as ground
to it should been have granted.
The third does me not strike of ground as sufficient the be to motion to sustained it. importance require as to The fourth cannot be under the case of ground sustained Co., Bolin v. R. hereinbefore referred to.
The fifth the is that is in charge ground alternative; that the defendant its serv- the fire either set set ants out allowed be out along a form of of way, right pleading universally reprehen- The defendant was entitled know sible. which intended rely, in view theory plaintiffs particularly for punitive of the demand damages. ' of The sixth asserts a right defendant to ground acts defendant distinct of constitut- specification complaint.' plaintiffs’ Except the basis-of ing et al. Carrolu Cardweuu Opinion
Dissenting of charge I think that vice alternative pleadings, etc., def- sufficiently out the fire setting negligently, inite and certain.
4. The demurrer of the defendant Carroll.
The which would objections defendant Carroll interposes more from the of Colleton come appropriately defenses, true, if no the American Company, Surety His far is concerned. demurrer was properly so he overruled. of the defendant American Com-
5. The demurrer Surety pany. is no cause of first that states ground Colleton; that that for reason
action against Misjoinder is causes of there a misjoinder parties. demurrer, If is not of a parties. per- action a ground stated, cause is is whom no of action son against sued stated, of action is with one whom a cause along against a which vice is multiplicity ground is parties, demurrer; whom no of action cause person against reason; stated the other all demur may This demurrer further affected ground presence. of action stated com- against surety states that no cause will discused in connection matter with the pany; other grounds. a matter would come suggests second ground from the defendant
more Colleton County; appropriately has no interest in it. company is that the complaint The third does not state ground tO' constitute cause of facts sufficient action American in that : Surety Company, It does (1) *14 is liable under that its bond appear for committed defendant Carroll or his tort agents a it does not that the acts servants; appear (2) constituting arose defendant Carroll a tort reason con- highway. of the struction et al. v.
CaedwEEE Carroee
1(53] allegations complaint meager singularly the relation between the stating and' of ’Colleton County Carroll, the defendant or the relation between the County and the American ref- No Surety Company. erence contract, is made in the to the terms of the complaint existed, if Carroll, any between or to the terms of the which, bond of to the Carroll it County upon assumed, the American Surety Company surety. It is to tell from the the terms of impossible complaint contract, which, Carroll’s course, a matter as constitutes the extent and limitation All surety’s obligation. that the American be- came “for Carroll and all claims any arising by reason of the construction of the roads hereinafter referred to.” It be assumed from that the had might this let the construction of to the defendant Carroll highway contract specific Carroll to certain binding obliga- tions; that Carroll had a bond for the given faithful per- contract; under the obligations formance his and that the American had his Surety bond as Company signed Court, however, surety. This has no right indulge such taken assumption; must be as is. complaint remarked, above As motion of the surety dicussing to order the to be made more definite company complaint certain, quoted above allegation falls short of the very allegations ordinarily which would be made if the action had been surety company alone. But what above stated as in- assuming possibly ferable, there or in such an complaint, is nothing inference, show became surety company obligated a tort respond of the defendant or of and servants. If the agents allegation be taken true that Carroll or his set fire out plaintiffs’ servants premises neg- it to out on the allowed be set ligently right way, *15 et al. et al. v. Carroru Cardwexu C.
Dissenting Opinion Carroll would clearly it extended to the premises, plaintiffs’ the all with tort, not connected at been of a have guilty covered not and therefore “construction” of the highway, forth in the terms to set the bond the meager by according com- tort was that the It is even compaint. not certainly the construction was in process; mitted while But aside the construction. that it connected with it for granted these objections, taking from technical a con- to the Carroll that the let construction County the company with tract, surety a bond that Carroll gave contract, and the faithful for performance the surety the defendant for became “surety that the surety company reason of all claims arising by for any Carroll L. J. to,” I referred shall the road hereinafter the construction of this Does squarely: obligate meet the to question endeavor com- for a tort in damages surety company respond while engaged or his and servants by mitted Carroll in the construction? complaint, fair allegation
A interpretation the defendant “is for that the B. surety surety company reason of Carroll, all claims by arising any roads,” is that a was executed by bond construction faithful perform- conditioned upon company, surety terms, and all requirements, the contractor of by ance and under with the County, of its contract conditions sustained any damages company is liable failure of the contractor faith- reason contract; with any requirements fully comply it, from not, cover excerpt meager it does judging clear that the bond was object else. It is anything of its con- assure to performance simply terms. in accordance with its tract Carroll have to do this for the only would plaintiffs claim made any to assure payment but County, while he have been may engaged one et ai. v. et Caedweee Carroee out the contract made with carrying County, although *16 by their own interpretation it claims covers only “arising reason of the construction roads.” by a will- Surely ful, wanton, Carroll, act of or of negligent servants, out fire from the work setting away construction can have no connection of con- work struction.
The point fairly the case v. illustrated Eidsvik Minn., 468; W., Foley, 99 109 There the con N. 993. ditch, tractor a drain under contract with engaged dig a The that the County. provided bond assurance only contract would be faithfully but in performed, provided for those whose land be demnity injured a might faulty construction. The contractor failed to a provide proper drain, outlet for the on account of which the plaintiff’s land was flooded. The Court that the very properly held sureties were bound to to the respond plaintiff for caused. injury so The declares: opinion
“The bond object was not simply secure performance contracts accordance with the plans further, and specifications, but to furnish for indemnity those who be a injured might failure contractor to construct ditch in the manner the con- provided by tract.” distinction prominent between case and case
a bar is that in the latter there no similar appears indemnity for third is not all at connected with persons injury the- construction. inference from the Minnesota case clear that unless the bond third provides immunity derive no persons, can benefit from it. It they upon was that the bond specific ground for provided indemnity materialmen, that the plaintiff’s was sustained Co., C., 55; E., of Mack v. case 103 Bonding S. 87a S. 439. This is sustained proposition overwhelming A of authorities: contract array stranger to between two et v. al. 182 Carrorr CardwRRR Dissenting C. Opinion S. it, other unless it appears, cannot recover persons, upon made, him, that it was that it confers benefit but only least, Brazier, 55 his benefit. Allen v. Bailey, part Moon, Law, O'Brien, 1 Duncan Dud. 332. Brown v. v. Rich., 268; Dec., Gordon, 3 44 Am. 254. v. Thompson E., 87; Co., Strob., C., 196. v. R. 31 9 690. Harris S. S. E., 162; 222; 40 Co., v. 89 Am. Butler Tel. St. S. S. Co., C., 284; 64 Ancrum v. 893. Water Rep., S. Atkinson, 151; R. A. 1029. Thomas S.), (N. L. E., C., 125; J., C. that the There not a bond suggestion who might injured benefit those given *17 servants, of the contractor or his and by the torts agents It may of the of the highway. construction independently bond, it be that will inspection appear upon to the the but indemnity only bond to provides “ which have been incurred third for injuries persons, construction, under the and about said the of operation the ” re- statutes of the state clause in common bonds (a use In that event the the state by highway commission). quired whether covered the would arise question provision As the in the case. by present sustained damage plaintiffs stands, of a without any allegation provision complaint I think that the benefit of third persons, bond is American Surety Company as to the complaint plainly too, of demurrable. This emphasizes, propriety be made more motion that surety company’s definite and certain. in the of Mr. Watts:
It is stated opinion Justice of of the American New “As the bond will for itself what the At the trial bond show York: for; a matter de- that is became liable surety company by be and cannot determined surety company fense them.’’ the demurrer interposed this plaintiffs at all proposition. I do not agree action, incumbent them upon are bringing et al. v. CatdwFTR Carrout
state the facts claim they liability surety so, Until do company. they there is for the nothing to defend. company
I think therefore that the demurrer of the American Sur- sustained, should ety have been Company leave to to amend their plaintiffs they advised. may 6. The demurrer defendant Colleton county.
In the of Mr. is said: opinion Watts Justice “If fire result of act of Car- negligent roll or the him in hands roads employed working under contract between Carroll and Col- county, leton in the their county, em- acting scope authority then both ployment, Carroll and Colleton would be liable to for the loss sustained respond or willful and wanton respondents, by acts of negligent him, the hands employed by his control supervision, acting authority.” scope With due deference I think that this state- respect, ment too broad. I if entirely agree that Carroll com- mitted the he tort responsible damages, regardless “ ” whether he acted in the of this or not. scope authority I also that if the servants Carroll com- agree mitted the tort while within the actual their acting scope *18 responsible Carroll is I employment, in But do damages. not to the statement that under either of condi- agree stated, Colleton, tions of county made a con- having Carroll, tract with for the construction of the highways, wfould be for the responsible of consequences think, stated, their torts. I as that it is in- already plainly ferable from doubtless would complaint, explicitly amended an with appear upon an conforming order to make more definite and cer- present complaint tain, entered that Colleton into a written contract county with Carroll for the construction of the and that highways; executed a to the county, bond with the American faithful surety, for the performance
[13] ——s. C. 139 et al. v. 184 Carrouu CardwSUU Dissenting- Opinion so, is that his contract. If relation to the Carroll’s contractor, committed torts, of an for whose independent the while the construction of the engaged highway, cannot held liable. Charleston, Rich., 201,
In v. the Court said: Conlin en- “A is for the of his servant master liable negligence business, and con- because he selects his his servant gaged him. not for acts trols He should be answerable done by another, the servant or that other who is sub- by Therefore, fixed to his control. owner ject property, movable, for whose benefit work about such property for the negli- to be is not held answerable accomplished, he contractor to whom has com- of an gence independent work, control in its done without his prog- mitted the to be Co., 73 v. Exp. with Banks S. approval ress quoted ’’— 211; C., E., S. ' C., Co., 378; In R. Rogers S. for damages that the railroad was not liable
held company the limits its from a fire right way, within resulting an contrac- the act the servants of independent caused the road. to build tor who was engaged company Co., E., 146, In Abbott v. Lumber from the Conlin foregoing after quoting approval case, the Court said: contractor, felled an
“If the trees were independent for such wrong.”' the defendant was responsible builder, an A on independent employment carrying his a contract with employer, by acting pursuance times in he to work specified partic- has agreed ular manner for a alone liable stipulated price, third that occur work while injuries persons and which are caused negligence. progressing 1324, it is In 39 C. said: J., exists, contractor independent the relation “Where *19 a due has been exercised diligence selecting compe- contractor, and the contracted to be done not is thing tent et al. v. CapdwEUU Carrou, 185 1926 nuisance, in itself a nor will result a nuisance necessarily used, if and an proper precautionary injury measures a results, third person from the fact that the work is done but from the or manner of wrongful negligent servants, doing by contractor or his contractor liable cases, more than 200 citing including therefor” — case Rich., Colin from 15 201.
See, also, 16 Enc., Am. & Artist, 192. Eng. R. Co. v. 367; C. F., A., 60 (C. A.), 23 R. 581. v. Richmond L. Va., 354; E., 562; A., 101 Sitterding, 445; 43 65 R. S. L. 99 Am. Co., Va., 879. 474; St. Vickers R. 64 Rep., W. E., 63 367; 793; S. 20 R. A. (N. L. Am. S.), Rep., St. 929.
It that seems me considerations are foregoing conclusive that states no cause of action against Colleton It county. is not there- really necessary fore to consider the whether question liability under what is termed the “Enabling Statute’’ follows from the facts stated in complaint.
It clear the cases Columbia, of Derrick v. S. E., C., 29; C., 857. v. Columbia, McNinch S. 128 S. E., 375; Columbia, 403. Kneece v. S. 128 S. Laurens, C., 271; 100. Wilson v. 134 E., 590, cited Mr. do Watts, not affect the ques- Justice tion, for in each one of them the was the tort complained direct act of the no even question was made municipality; that was act servants of the in- municipality contractor. dependent
It must be liability admitted the question or 2948 and city, a municipality, Sections Court, under the decisions this deplorably unassisted, I confused condition. cannot to relieve hope, I only and can reiterate the conclusions which confusion have heretofore arrived at: action, has the No right, corporate municipality citizen of a without property
take damage compen- *20 et CapdwSUU et v. al. al. Carr our Dissenting C. Opinion S. under sation, therefor responsible Constitutions, and the of both federal provisions State Statute,” as sections “Enabling so-called regardless 4478. 2948 and a a
2. In absence of a statute, municipality, segment for the in damages of the is not responsible government, in the its or per- nonfeasance misfeasance of duties, however responsible their formance of governmental ordered, authorized, or ratified act was where the may be it. In fix for liability municipality 3. upon order must be nonfeasance misfeasance of its agents, Statute and the case which such produced liability, creates must come within folds of such Statute. question 4. relied upon, prescribes The Statute Section will exist: liability (1) conditions which such liable must result for made county negligence of, in, condition the highway, a defect or defective such travel; at the for Those who only as makes unsafe (2) of the highway time of use injury making to the benefit of of travel are entitled legitimate purposes in the There is not a suggestion the Statute. can be liability brought asserted these essential elements. of either of within terms called to the latest deliverances of Particular attention is Walterboro, 127 Hiott v. this Court subject: S. C., E., 251; 119 v. Charleston, 869. S. Stewart E., York, C., 398; 132 678. Youngblood S.
I think demurrer therefore sustained. have been Colleton should the case report will incorporate reporter and demurrers. motions several et al. v. Caldwell Curiam. Petition dismissed. Per Rehearing. On Petition I : make cannot (dissenting) Cothran, Mr. Justice this I done in case than have dis- my my views plainer *21 I therein stated dis- reasons for senting opinion, the order for a rehearing. sent from refusing petition I that the Court am to believe unwilling fully compre- unlimited in this to degree opinion hends it far county; extended the of a exceeds liability case has heretofore been rendered by decision that has extent any Court; of other subversive my opinion, this or any of for an owner liability settled principles affecting an contractor or his of agents negligence independent servants; im- and in the hundreds of instances of road it is now calculated contemplated, provement begun every county embarrass practically State. seriously a case a contract Here have of a county legally letting we of a con- construction an improved highway tractor, for the under a written contract performance all material and labor con- supplying act and every construction, that under surety company nection with faithful of his for his performance bond to the a case If that does not present contract. independent I not understand English do contractor, language. .In it has clime, sky, been the settled every judicial every kind of to be con- property law that the proprietor liable in is not or improved structed contractor, and an at this independent why, act of negligent from, should be and a departed county, day, principle creation, statutory limited to be made liability whose rule, beyond my comprehension, exception emphatic disapproval. most my receives says: Dillon Mr. As words, of respondeat superior principle
“In other contracts, of independent extend to cases rule as a does is to the work done is for whom not the where the party Rutledge Dist. Sewer Syllabus immediate act those of the wrongful superior guilty and no con and has no choice of workmen selection Dillon, M. C. trol over the the work.” manner doing Tillotson, Wash., ; R. Co. v. (5th Ed), § 147 P.,423. State,
A is a a carved-out segment portion for the immunity It partakes State. State’s when other- of its servants negligence except there is no wise Certainly Statute prescribed Statute. of an con- independent liable for making negligence and servants. tractor or of his agents DIST. ET GREENVILLE SEWER AL. RUTLEDGE v. GREATER *22 E., 597) (137 S. op Presumptions Favor Consti-
1. Constitutional Law — op Invalidity tutionality will not be Declared Statute, Every presump- Beyond Doubt.— Manifest Reasonable Unless constitutionality of an act indulged tion in favor of must be not a Statute should declare Legislature, and the Courts reasonable invalidity beyond manifest unconstitutional unless doubt.
2. op Corporations Municipal Held Sewer District —Bonds Limiting op Bonded In- Constitutional Provision Violative 23, 1540]; Act p. [34 Large, March St. at (Act debtedness 30, 744], p. Large, Act Amended at as March St. 10, 5, 23, 1537]; § 1926 [34 p. Const, Large, art. St. at art. March 23, (34 8, Act March of bonds authorized 7).§ —Issuance 30, Large, at St. (34 Act March Large, p. 1540), and St. at 23, p. (34 Large St. amended Act March 744), as p. district, held Greenville sewer 1537), creating the Greater indebtedness, 5, 10, Const, limiting bonded § art. violative Const, 8, 7, inapplicable such declaring limitation art. § view of where municipal corporation by any in and bonded indebtedness purchase, establish- solely to applied bonds are proceeds system. ment, of sewer maintenance Corporations “Municipal Municipal as used Corporations,” — Bodies Politic Established Include Held Constitution, ' Legislature Municipal Functions Perform Power Const., used in corporation,” 7). “Municipal § (Const., — Art.