Dawkins v. Chester County

115 S.E. 62, 122 S.C. 8, 1922 S.C. LEXIS 238

• Court: Supreme Court of South Carolina
• Decided: December 20, 1922
• Docket: 11069
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. ChiE^ Justice Gary.

This action was commenced on the 7th day of July, 1921. The following is a copy of the complaint, omitting allegation No. 1 as to the incorporation of the defendants and that the plaintiff is a resident of Union County.

“(2) That on or about the 7th day of September, 1920, and for a considerable time prior thereto and subsequently, the defendants above named jointly owned and operated a ferry, at Fish Dam ferry on Broad River, between said Union County and said Chester County, and transported wagons and teams for the public across said river. That on said date, while the plaintiff, with his wagon and team of'mules-, the property of the plaintiff, was being transported across said river on said ferryboat, owned and being operated by the defendants and their agents and servants, the windlass of the said ferryboat suddenly gave way and became detached from its place while said ferryboat was' about the middle of said river, thereby causing said ferryboat to swing around at the front end and to precipitate plaintiff’s pair of mules into said river and drowning said mules, the property of the plaintiff, and thereby causing the plaintiff a loss and damage in the sum of eight hundred ($800.00) dollars. That the same were a very valuable pair of young mules and were reasonably worth the said sum of eight hundred dollars, and were lost and drowned.

“(3) That the said loss and damage to the plaintiff was directly due to and caused wholly by the defective condition of the windlass of said ferryboat, the same being old, worn, improperly constructed of unsound and unsafe material, and insufficient for the use and strain upon the same for the uses and purposes for which the same was being used, of which unsafe and dangerous condition the defendants and their agents and servants had knowledge beforetime, and to the negligence on the part of the defendants, their agents and servants, in the repair of said above-mentioned defects, and to the mismanagement in operating said ferryboat in its then defective and dangerous condition.

“(4) That the plaintiff did not in any way bring about such loss and damage by his own act, or negligently contribute thereto.

“(5) That the plaintiff’s load on said occasion did not exceed the ordinary weight.

“(6) That said defects in the windlass of said ferryboat were occasioned by the neglect or mismanagement of said ferryboat by the defendants, their agents- and servants.”

The separate answer of the defendant Chester County is as follows:

“(1) It admits the allegations contained in paragraph 1 of said complaint.

“(2) Answering paragraph 2 of the complaint, this defendant admits- that the defendants above named jointly owned and operated a ferry at Fish Dam ferry on Broad River between said Union County and said Chester County, and transported wagons and teams for the public across said river, and this defendant further admits, upon information and belief that on or about the date mentioned in the complaint; that while the plaintiff, with a wagon and team of mules, were being transported across said river on said ferry, the said two mules were drowned; but this defendant denies each and every other allegation contained in said paragraph not specifically admitted.

“(3) For answer to paragraph S of the complaint, this defendant admits, upon information and belief, that plaintiff’s load at the time mentioned did not exceed the ordinary weight.

“(4) That this defendant, Chester County, denies each and every allegation cqntained in paragraphs 3, 4, and 6 of said complaint.”

The answer of Union County is the same as that of Chester County, except in one respect. The defendant Union County made a motion during the trial of the case, which was granted, for an order to amend its answer by alleging:

“That the plaintiff in this action, having filed with Union County a claim for the, cause of action as alleged in the complaint, and the county board of Union County having passed on that, and there being no appeal from the same, that is a complete bar and final settlement of the case.”

The plaintiff denied these allegations. Both defendants set up the defense of contributory negligence. At the close of the testimony the jury rendered the following verdict:

“We find for the plaintiff the sum of $640, one-half of amount to be paid by Union County, and one-half of amount to be paid by Chester County.”

The defendants appealed on exceptions, which will be reported.

The first question that will be considered is whether there was error on the part of his Honor the Circuit Judge in ruling that the proceedings by the county board of commissioners were, not as a matter of law a final and valid adjudication of the plaintiff’s claim for $800, on account of the drowning of the mules mentioned in -the complaint. The testimony as to what took place between the plaintiff and the county board of commissioners of Union County was in direct conflict, and susceptible of more than one inference; therefore the requested ruling would have been a charge upon the facts, and contrary to law.

-Furthermore, the ruling would have been very prejudicial to the rights- of Union County, as it would have been an adjudication as to the validity of the plaintiff’s claim for $800 against Union County alone, and the plaintiff would have had the right to resort to mandamus proceedings against the county board of commissioners of Union County, for the purposes- of requiring them to pay the full amount of his claim.

Section 945, Code of Laws 1912, is as follows:

“All accounts, claims and demands of whatever nature existing against the county for opening, constructing, maintaining and operating any public highway, road, bridge or ferry shall be presented to the county board of commissioners, duly attested, and if approved by said board, the county supervisor shall draw his warrant upon the county treasurer, under the seal'of the county board of commissioners, for the amount of any such claim or claims, which warrant shall be countersigned by the secretary of the board and the same shall be paid by said treasurer out of the county road fund.”

In the case of Jennings v. Abbeville County, 24 S. C., 543, the Court uses this language:

“In case such warrant was refused, they might, as suggested in the argument, apply for a writ of mandamus- to test the question whether the board of county commissioners, having already audited their claim, are not bound to issue a warrant for its payment, and that right they had, as clearly as now, before they commenced this action in the Court of Common Pleas.”

The record shows that the writer of this opinion was the attorney for Abbeville County in the case just mentioned, and, as matter of fact, after the decision of the Supreme Court therein, instituted mandamus proceedings against the board of county commissioners, obtained an order from his Honor,, Circuit Judge Fraser, requiring them to pay the claim, which was enforced, and the monev paid.

The only other question is presented by the tenth exception. The jurisdiction related to the person, and not to the subject-matter; therefore when Ches ter County contested the case upon the merits it waived the question of jurisdiction. Jenkins v. Railway, 73 S. C., 292, 53 S. E., 480; Jenkins v. Railway, 84 S. C., 343, 66 S. E., 409.

Affirmed.