Opinion
12808
January 14, 1930.
Before MANN, J., Orangeburg, June, 1928. Affirmed.
Action by A.E. Oswald against the City of Orangeburg. From the judgment sustaining a demurrer to the complaint, plaintiff appeals.
The complaint, directed to be reported, was as follows:
I. That the defendant, city of Orangeburg, is a municipal corporation, organized and existing under the laws of the State of South Carolina.
II. That the defendant, city of Orangeburg, under the power, vested in it by law, keeps and maintains a water and light department and a fire department, for the purpose of extinguishing and fighting fires occurring within its limits. That it has the sole and exclusive control of said departments and is charged with their careful management. That the employees working in the departments are required by the defendant, city of Orangeburg, to carry out and fully comply with all orders given by the parties placed in charge of the departments by the defendant and the officials of the city of Orangeburg.
III. That on or about the 14th day of April, 1927, the plaintiff, A.E. Oswald, was in the employ of the defendant as a laborer in its water and light department and its fire department, and had been, for a number of years, acting and working under instructions and orders of the defendant, city of Orangeburg, its superintendents and representatives in charge of its affairs, and was at all times subject to do any kind of work that they might direct him to do. That his duties as an employee in the water and light department was to look after the upkeep and repair of the water mains in its streets, light poles and wires running through the streets of the city, and to keep the streets clear, unobstructed, and in good condition while working and making repairs. That his duties as a fireman in the fire department was to respond when called by the superintendent or chief of the fire department, and, in case of a fire in the city, join with the main fire fighting force and work and perform the duties of a regular fireman, fight and extinguish fire, protect property, keep the streets clear of all material that might fall from the burning building on the sidewalks and into the streets, remove any obstruction that may be placed in the streets by the firemen while fighting fire, and repair any portion of the sidewalks or streets that was rendered in an unsafe condition, keep the sidewalks and streets in a safe condition for the traveling public and pedestrians who may be using the sidewalks and streets of the city. That the fire department is equipped with fire engines, trucks, machinery, ladders, and the usual fire fighting equipment.
IV. That on or about the 14th day of April, 1927, at about 4:30 o'clock in the morning, the plaintiff, A.E. Oswald, was called out by the chief of the fire department to assist in extinguishing a fire in a large three-story building on the corner of Russell and Middleton streets, one of the main business sections of the city of Orangeburg. That, as the chief of the fire department was on his way to the fire in the car used by the chief of the fire department, he took on the plaintiff, A. E. Oswald, and carried him to the fire to assist in fighting and extinguishing the fire, protect adjoining property, keep the streets near and about the burning building clear of all material that may fall or be thrown from the building, and clear of any obstruction that may be placed in the streets by the firemen while fighting the fire, and to keep the streets in a clear and safe condition for the traveling public and pedestrians traveling along the streets and sidewalks of the city near the fire.
V. That the plaintiff, A.E. Oswald, under the orders and directions of the chief of the fire department, and the officials of the defendant, city of Orangeburg, and in line with his duties as one of the firemen, immediately upon reaching the fire, went up one of the ladders used by the fire department that was placed up on the side of the building by the firemen, under the directions and orders of the chief of the fire department and the parties in charge of the fire fighting force, to the top of the building, and worked and fought to extinguish the fire in the loft of the building for about three hours with the other firemen. That the fire began to gain headway over the efforts and work of the firemen, and, after they had been fighting for about three hours, the chief of the fire department ordered the plaintiff and the other firemen to come down from the top of the building on the ladder that was used in getting up on the building. That, under the orders of the chief of the fire department, whose orders the plaintiff and the other firemen were required to obey and carry out, the plaintiff, A. E. Oswald, came out from the top of the building and started down from the third story on the said ladder, and just as the plaintiff started down, the end of the ladder that rested on the sidewalk and street near the building tilted up and slid out into the street, and threw the plaintiff, and caused him to fall from the top of the ladder that was resting against the top edge of the building into the street, and as the plaintiff was falling, he struck one of the window sills or facing of the building and the top of an iron lamp post in the street by the sidewalk, and was seriously and permanently injured. His skull was fractured, nose cut, and broken, teeth knocked loose, right leg broken above the ankle, arms and body severely cut and bruised, seriously injured internally, and rendered in a mangled lifeless condition. That the plaintiff, A.E. Oswald, after he was injured, was carried to the hospital in the city of Orangeburg, and remained under the care of the physicians of the hospital, in the most serious, painful condition, suffering the most severe, excruciating, physical pain and mental anguish, for a number of weeks, and remained in a weak, nervous, suffering condition, unable to get about for about five months. That the said injuries are of a permanent nature, and the plaintiff continues to suffer, is in a weak physical condition, and will likely remain so the remaining part of his life.
VI. That, some time prior to the said fire, the ladder truck, which carried the said ladder, was wrecked, and the ends of the pike poles that were attached to the ladder some distance from the bottom on either side, which extended down to the bottom and formed a part of the ladder, and was necessary for the holding of the ladder in place, while in use, were broken off. That, after the accident in which the pike poles were broken, the chief and parties in charge of the fire department, acting for and under the orders of the defendant, city of Orangeburg, had the steel points used on the bottom of the said pike poles taken off of the poles and reattached to the part of the pike poles that remained attached to the ladder, making the said pike poles much shorter than they were originally, and rendered the ladder in an unsafe, dangerous condition for use.
VII. That, for the protection of the firemen from danger and injury, it was necessary to have two or more of the firemen hold the said ladder in position at the bottom while being used by the firemen. That the defendant, its agents and servants and chief in charge of its fire department, knew that it was necessary, and that it was their duty to have the said ladder held in place, and that, if they failed to have two or more men at the bottom of the ladder to hold it in place, while being used, that injury and damage would likely occur to the firemen or any other party attempting to use it. That at the time the plaintiff attempted to use the said ladder in carrying out the orders of the defendant, its agents and servants, and chief of its fire department, there was not anybody at the bottom of the ladder holding it in place, which made it very dangerous and unsafe for use by the firemen. That the plaintiff, A.E. Oswald, did not know or have any knowledge of the unsafe condition of the ladder, and that the defendant, its agents and servants, and the chief of its fire department, did not have two or more men or firemen holding the ladder in place until after he was injured.
VIII. That, at the time the plaintiff was injured, he was attempting to come down on the said ladder in accordance with the orders of the chief of the fire department and clear the streets of the material and rubbish that had fallen off the building in the streets on the sidewalk near the building and of all the fire fighting equipment that had been placed in the streets by the firemen that obstructed the sidewalks and streets and rendered them in an unsafe condition, and to clear the streets of such obstruction and make them safe for the traveling public and pedestrians traveling and walking along the streets and sidewalk.
IX. That the said injuries to the plaintiff were received after he had been ordered by the chief of the fire department of the defendant, city of Orangeburg, to cease fighting the fire, and, just as he had started and was going about his duties as a fireman, under the orders of the chief of the fire department, to clear the streets of all rubbish and fallen material from the building and of all material and equipment and obstruction that had been placed in the streets by the firemen, and as he was carrying out the orders of the chief of the fire department of the defendant, city of Orangeburg, to clear the streets and make them safe for the traveling public and pedestrians traveling along the streets.
X. That the injuries and damage to the plaintiff were not brought about by his own act, and that he did not negligently contribute thereto.
XI. That all of the acts and conduct of the defendant, its agents and servants, were careless, negligent, and willful, and, by reason of said acts and of its careless, negligent, and reckless mismanagement of its fire department and affairs, its agents and servants, which are under the exclusive control of the defendant, the plaintiff, A.E. Oswald, was badly injured and damaged, and forced to pay out large sums of money for medical attention, and rendered in a weak permanent physical condition, as aforesaid, in the sum of $20,000.00.
Mr. L.A. Hutson, for appellant, cites: Demurrer: 131 S.C. 148; 134 S.C. 324; 142 S.C. 369. Action against municipality: Sec. 4478, Code; 58 S.C. 413; 104 S.C. 116; Id., 371; 66 S.C. 448; 70 S.C. 142; 43 S.C. 398; 89 S.C. 511; 36 L.R.A. (N.S.), 363; 107 S.C. 124; Id., 505; 71 S.C. 170.
Messrs. Sims Sims, for respondent, cite: Municipality not liable for torts, except as provided by statute: 70 S.C. 137; 89 S.C. 511. Not liable to fireman injured by defective apparatus: 19 R.C.L., 1118; 43 C.J., 967; 19 S.C. 412. As to liability: Sec. 4478, Code; 43 S.C. 398; 66 S.C. 442; 89 S.C. 511; 94 S.C. 375; 104 S.C. 371; 106 S.C. 255; 107 S.C. 124; 107 S.C. 505; 111 S.C. 7; 127 S.C. 251; 129 S.C. 257; 134 S.C. 398; 135 S.C. 337; 58 S.C. 413; 104 S.C. 116. A person using simple tool under dangerous circumstances guilty of contributory negligence: 139 S.C. 48.
January 14, 1930. The opinion of the Court was delivered by
This action, commenced in the Court of Common Pleas for Orangeburg County, February 23, 1928, is an action by the plaintiff, A.E. Oswald, against the city of Orangeburg to recover damages in the sum of $20,000 for alleged injuries sustained by the plaintiff while in the employ of the city of Orangeburg, on account of its alleged "careless, negligent acts and the negligent, reckless mismanagement of its fire department and affairs." The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was heard by his Honor, Judge M.M. Mann, June 11, 1928, who, after hearing counsel, sustained the demurrer, dismissed the complaint, and issued an order to that effect. From the ruling and said order of Judge Mann the plaintiff has appealed to this Court, imputing error to his Honor in sustaining the demurrer and in not overruling the same.
We agree with the conclusion reached by the Circuit Judge. The Courts of this State as well as the Courts of other jurisdictions, have universally held wherever the question has arisen that a municipality is not liable in damages for a tort committed by any of its officers or agents, unless made so by statute. The statute relied upon by the plaintiff to sustain the alleged right of action is Section 4478, Vol. 3, Code of Laws of South Carolina, 1922. That section reads 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. If any such defect in a street, causeway or bridge existed before such injury or damage occurred, such damage shall not be recovered by the person so injured if his load exceed the ordinary weight: 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 or her own negligent act or negligently contributed thereto."
In order to maintain an action under the provisions of this section of the Code it must appear that the injuries complained of, and the damages resulting therefrom, were caused by or through a defect in a street, bridge, causeway or public way, within the limits of the municipality, and caused by the neglect or the mismanagement of the municipality, its officers or agents, or by reason of a defect of anything under the control of the municipality, used in making repairs in the streets, causeways, bridges, or public ways, within the limits of the municipality, and due to the neglect of the municipality, its officers or agents. A careful examination of the complaint fails to convince us that the allegations meet this requirement, and we, therefore think that his Honor, Judge Mann, was right in sustaining the demurrer and dismissing the complaint.
The exceptions are overruled, and the judgment of the Circuit Court affirmed.
MR. CHIEF JUSTICE WATTS AND MESSRS, JUSTICES COTHRAN, BLEASE, and STABLER concur.