Frederick v. Standard Warehouse Co.

Supreme Court of South Carolina

Frederick v. Standard Warehouse Co.

122 S.E.2d 425, 239 S.C. 216, 1961 S.C. LEXIS 49

CourtSupreme Court of South Carolina

DecidedOctober 30, 1961

Docket17840

StatusPublished

Cited by5 cases

This text of 122 S.E.2d 425 (Frederick v. Standard Warehouse Co.) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Frederick v. Standard Warehouse Co., 122 S.E.2d 425, 239 S.C. 216, 1961 S.C. LEXIS 49 (S.C. 1961).

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Opinion

Lewis, Justice.

This action was instituted by the plaintiff against the defendant to recover for personal injuries sustained when the plaintiff stepped into a hole in the floor of a warehouse owned by the defendant and leased to plaintiff’s employer. The complaint alleges that the injuries of the plaintiff were caused by the negligent failure of the defendant to perform provisions of its lease agreement with plaintiff employer to keep the leased premises in proper repair. It was also alleged that plaintiff had received benefits from his employer under the Workmen’s Compensation Act by reason of the injury sustained, and that his employer was subrogated to any recovery in this action by reason of such payments to the extent of the amount so paid.

The defendant interposed a demurrer to the complaint on the grounds that it shows upon its face (1) that the plaintiff did not have the legal capacity to bring the action and (2) that the allegations fail to state a cause of action against the defendant. The lower Court sustained the demurrer on *218 the first ground but did not pass upon the second, granting to the' plaintiff the right to file an amended complaint. The defendant has appealed from such order in its favor upon the ground that the lower Court should have also sustained the demurrer upon the second ground.

The appeal must be dismissed. The lower Court did not pass upon the additional ground now urged for sustention of the demurrer and the question is, therefore, not properly before us. It is well settled that “where a Circuit Judge has not in anywise passed upon a question asserted in this Court, it is not properly before us for decision”. Simonds v. Simonds, 229 S. C. 376, 93 S. E. (2d) 107, 112; Drakeford v. Dixie Homes Stores, 233 S. C. 519, 105 S. E. (2d) 711; Wright v. City of Florence, 229 S. C. 419, 98 S. E. (2d) 215; Aetna Life Ins. Co. v. Lourie, 201 S. C. 478, 23 S. E. (2d) 741; Flowers v. Price, 192 S. C. 373, 6 S. E. (2d) 750.

Appeal dismissed.

Taylor, C. J., and Oxner, Legge and Moss, JJ., concur.

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Lewis, Justice.

This action was instituted by the plaintiff against the defendant to recover for personal injuries sustained when the plaintiff stepped into a hole in the floor of a warehouse owned by the defendant and leased to plaintiff’s employer. The complaint alleges that the injuries of the plaintiff were caused by the negligent failure of the defendant to perform provisions of its lease agreement with plaintiff employer to keep the leased premises in proper repair. It was also alleged that plaintiff had received benefits from his employer under the Workmen’s Compensation Act by reason of the injury sustained, and that his employer was subrogated to any recovery in this action by reason of such payments to the extent of the amount so paid.

The defendant interposed a demurrer to the complaint on the grounds that it shows upon its face (1) that the plaintiff did not have the legal capacity to bring the action and (2) that the allegations fail to state a cause of action against the defendant. The lower Court sustained the demurrer on *218 the first ground but did not pass upon the second, granting to the' plaintiff the right to file an amended complaint. The defendant has appealed from such order in its favor upon the ground that the lower Court should have also sustained the demurrer upon the second ground.

The appeal must be dismissed. The lower Court did not pass upon the additional ground now urged for sustention of the demurrer and the question is, therefore, not properly before us. It is well settled that “where a Circuit Judge has not in anywise passed upon a question asserted in this Court, it is not properly before us for decision”. Simonds v. Simonds, 229 S. C. 376, 93 S. E. (2d) 107, 112; Drakeford v. Dixie Homes Stores, 233 S. C. 519, 105 S. E. (2d) 711; Wright v. City of Florence, 229 S. C. 419, 98 S. E. (2d) 215; Aetna Life Ins. Co. v. Lourie, 201 S. C. 478, 23 S. E. (2d) 741; Flowers v. Price, 192 S. C. 373, 6 S. E. (2d) 750.

Appeal dismissed.

Taylor, C. J., and Oxner, Legge and Moss, JJ., concur.

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122 S.E.2d 425, 239 S.C. 216, 1961 S.C. LEXIS 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frederick-v-standard-warehouse-co-sc-1961.

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