96 S.E. 907 | S.C. | 1918
September 3, 1918. The opinion of the Court was delivered by Action against a lightning rod company for the negligent construction of a circuit system of improved lightning rods in the plaintiff's dwelling and barn building, so that thereby the plaintiff's mule was killed while standing in the plaintiff's stable, and the plaintiff's wife was shocked while sitting in the plaintiff's dwelling house. The defendant demurred and specified eleven grounds therefor.
The Court sustained the plea and dismissed the complaint because: "The action as brought and the complaint herein are barred, and that the terms of the contract or guaranty will not allow the plaintiff to bring the action herein in the form set out in the complaint, and that the contract and guaranty herein present an insuperable barrier to the said complaint."
There are four exceptions to the order; but the pith of the order was only that "the contract or guaranty will not allow * * * the action * * * in the form set out in the complaint," and the exceptions only challenge that holding.
The Court did not consider the other numerous grounds of the demurrer, nor can we; the exceptions make no such questions.
The third paragraph of the complaint alleges that the defendant undertook to erect for the plaintiff a complete circuit system of their improved lightning rods. The fifth paragraph alleges that the construction was negligent in two named particulars, to wit: (1) In resting the rods on the comb or roof of the buildings, and (2) in not extending the ground rods far enough in the ground to make good earth connections. The sixth paragraph alleges that lightning struck the rods, and by reason of the defects alleged it was not carried off into the ground, but did the damage alleged in the subsequent paragraphs.
These allegations, of course, state a cause of action; and the demurrer admits them to be true. The "contract" to which the Circuit Court refers, signed by the defendant alone, merely certifies that a complete circuit system of *560 improved lightning rods had already been erected, and it then warrants the effectiveness of such a system. The complaint alleges that a complete system was not erected.
The order is reversed, and the defendant may answer within 20 days after the filing of this opinion.