Caldwell v. Carroll

137 S.E. 444, 139 S.C. 163

• Court: Supreme Court of South Carolina
• Decided: March 10, 1927
• Docket: 12174
• Status: Published

Opinions

March 10, 1927. On petition for rehearing April 7, 1927.

The opinion of the Court was delivered by This is an appeal from an order of Judge Wilson overruling demurrers and motions to make the complaints more definite and certain. His order will be reported; it states the matters passed on by him. The order refusing motions to make more definite and certain is not appealable. The complaints state a good cause of action against all of the appellants.

The demurrers admit all the facts as stated in the complaints; and in addition to the authorities cited by his Honor, the following sustain his order: Derrick v. City of Columbia,122 S.C. 29; 114 S.E., 857. McNinch v. City ofColumbia, 128 S.C. 54; 122 S.E., 403. Kneece v. City ofColumbia, 128 S.C. 375; 123 S.E., 100. Wilson v. Cityof Laurens, 134 S.C. 271; 132 S.E., 590.

If the fire was the result of the negligent act of Carroll or the hands employed by him in working the roads of Colleton County, under contract between Carroll and Colleton County, acting in the scope of their authority and employment, then both Carroll and Colleton County would be liable to respond in damages for the loss sustained by the respondents by the negligent or willful and wanton acts of Carroll or the hands employed by him, under his control and supervision acting in the scope of his authority. As to the bond of the American Surety Company of New York: At the trial the bond will show for itself what the surety company became liable for; that is a matter of defense by the surety company and cannot be determined by the demurrer interposed by them.

All exceptions are overruled, and judgment affirmed.

MESSRS. JUSTICES BLEASE and STABLER and MR. ACTING ASSOCIATE JUSTICE RAMAGE concur.