McLees v. City of Anderson

Supreme Court of South Carolina

McLees v. City of Anderson

64 S.E. 750, 82 S.C. 565, 1909 S.C. LEXIS 89

CourtSupreme Court of South Carolina

DecidedMay 21, 1909

Docket7197

StatusPublished

Cited by3 cases

This text of 64 S.E. 750 (McLees v. City of Anderson) 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

McLees v. City of Anderson, 64 S.E. 750, 82 S.C. 565, 1909 S.C. LEXIS 89 (S.C. 1909).

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Opinion

The opinion of the Court was delivered by

Mr. Justice Gary.

This is an appeal from an order overruling a demurrer to the complaint (which will be set out in the report of the case) on the ground that it does not state facts sufficient to constitute a cause of action.

The first ground of the demurrer was “because the complaint shows on its face that the injury complained of was the result of the plaintiff’s own negligent act, or that they negligently contributed thereto.” The complaint alleges that “the plaintiffs did not in any way bring about such injuries by their own negligent act, nor did they negligently contribute thereto.” Even in cases where such words constitute no part of the cause of action, they are construed as material allegations of fact and dispense with the necessity on the part of the defendant of setting up in the answer the defense of contributory negligence. Long v. Ry., 50 S. C., 49, 27 S. E., 531.

For a stronger reason they must be regarded as material allegations of fact, when, as in this case, they constitute a part of the plaintiff’s cause of action. Walker v. Chester County, 40 S. C., 342, 18 S. E., 936.

For the purpose of the demurrer, these allegations must be deemed to be admitted. This ground of the demurrer was, therefore, properly overruled.

The second ground of demurrer was, “because the complaint does not state facts sufficient to constitute a cause of action, in that no facts are pleaded, on which to base the allegation, that plaintiffs did not, in any way, bring about such injuries, by their own negligent act, nor did they negligently contribute thereto.” If the plaintiffs did nothing, as they allege, to cause the injury, it is difficult to conceive in what respect there was a necessity for further allegations in laying the foundation for proof of a negative.

Appeal dismissed.

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The opinion of the Court was delivered by

Mr. Justice Gary.

This is an appeal from an order overruling a demurrer to the complaint (which will be set out in the report of the case) on the ground that it does not state facts sufficient to constitute a cause of action.

The first ground of the demurrer was “because the complaint shows on its face that the injury complained of was the result of the plaintiff’s own negligent act, or that they negligently contributed thereto.” The complaint alleges that “the plaintiffs did not in any way bring about such injuries by their own negligent act, nor did they negligently contribute thereto.” Even in cases where such words constitute no part of the cause of action, they are construed as material allegations of fact and dispense with the necessity on the part of the defendant of setting up in the answer the defense of contributory negligence. Long v. Ry., 50 S. C., 49, 27 S. E., 531.

For a stronger reason they must be regarded as material allegations of fact, when, as in this case, they constitute a part of the plaintiff’s cause of action. Walker v. Chester County, 40 S. C., 342, 18 S. E., 936.

For the purpose of the demurrer, these allegations must be deemed to be admitted. This ground of the demurrer was, therefore, properly overruled.

The second ground of demurrer was, “because the complaint does not state facts sufficient to constitute a cause of action, in that no facts are pleaded, on which to base the allegation, that plaintiffs did not, in any way, bring about such injuries, by their own negligent act, nor did they negligently contribute thereto.” If the plaintiffs did nothing, as they allege, to cause the injury, it is difficult to conceive in what respect there was a necessity for further allegations in laying the foundation for proof of a negative.

Appeal dismissed.

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Bluebook (online)

64 S.E. 750, 82 S.C. 565, 1909 S.C. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclees-v-city-of-anderson-sc-1909.

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