Opinion
13588
February 27, 1933.
Before JOHNSON, J., Greenville, February, 1932. Affirmed.
Action by Fred C. Davenport, by his guardian ad litem, Frank Davenport, against the Piedmont Manufacturing Company. From order overruling defendant's demurrer to plaintiff's complaint, defendant appeals.
The complaint, demurrer, and order of Judge Johnson, directed to be incorporated in the report of this case, are as follows:
THE COMPLAINTPlaintiff complaining of defendant alleges:
1. That plaintiff who is an infant six years of age brings this action by and through his father, Frank Davenport, duly appointed, as his guardian ad litem; and that he resides with father in said county and State; while defendant is a cotton cloth manufacturing company, a South Carolina corporation with its office and principal place of business in the Town of Piedmont, Greenville County, South Carolina.
2. That among other things in the pursuit of its business, defendant owns and maintains in the industrial community of Piedmont, a school building and playgrounds, the latter containing and being equipped with devices and contrivances placed and maintained there by defendant for the attraction and amusement of school children, among which was and is an instrument, contrivance or play appliance known among other names as a chute-the-chute, which consists of a ladder containing steps erected some ten or twelve feet into the air and a trough or slide running from the top of said ladder to the ground a considerable distance from said ladder. That the process of using said affair consists in the player climbing said vertical ladder or stairs to the top, placing the body in said trough and sliding or propelling the body by its momentum down said trough and onto the ground.
3. On or about October 23, 1931, plaintiff, who was in attendance as a pupil at said school, at the invitation and suggestion of defendant, and being attracted by said dangerous affair and contrivance attempted to ascend and go up said ladder for the purpose of sliding down said trough or chute; but that on account of the steepness of said ladder, the insecurity of said steps and foothold, as well as plaintiff's tender years and inexperience and judgment in the use of said dangerous and attractive appliance, and because of insufficient guard rails and other appliances at the very top of said ladder, lost his footing, fell and was hurled with great force and violence backwards some ten or twelve feet to the ground causing a severe fracture of his skull, bruises and shock about his head and body and affecting his mind, although he was not rendered non compos mentis.
4. That plaintiff's injuries were caused by the negligence, carelessness, recklessness and willfulness of defendant, in that defendant maintained and kept said dangerous appliance in its school yard exposed and subject to use of school children including plaintiff; in that it did not have same railed off and fenced so as to prevent children of tender years including plaintiff from using and coming in contact with same; in that while knowing same was attractive and dangerous to small children of tender years, it yet kept and maintained said dangerous appliance in the school yard and by and through its agents and servants, teachers at said school, turned said small children of tender years into said school yard with larger and older children and in permitting said children to set an improper example before small children of tender years inviting them to follow suit and become injured as plaintiff did; in that it failed to warn plaintiff of the dangers of said undertaking; in that, since it stood by and through its agents and servants in loco parentis, that it did not separate said children, place them in parts of the school yard removed from said danger and restrain and prohibit the use of said appliance by small children of tender years including plaintiff; in that it failed to have some person in attendance upon said appliance while in use; in that it had an insufficient landing at the top of said ladder with enclosures to prevent young children of tender years, including plaintiff, from falling out of and off the said ladder; and in that said rails and enclosures did not also extend down said trough or chute to the ground; to all and by reason of which said negligent, careless, reckless and willful acts plaintiff's injuries were due in the sum of Ten Thousand ($10,000.00) Dollars actual and punitive damages.
Wherefore, plaintiff prays judgment against defendant in the sum of Ten Thousand ($10,000.00) Dollars and the costs of this action.
GROUNDS OF DEMURRERPlease take notice: That at the call of the above-stated cause for trial, the date for same having been set for September 22, 1932, or as soon thereafter as counsel can be heard, the defendant will move the Court for an order sustaining a demurrer to the complaint herein for the reason that said complaint does not state facts sufficient to constitute a cause of action.
The grounds for said motion are as follows: It is a matter of common knowledge, as well as a matter of law and of the public records of Greenville County, of all of which the Court will take judicial notice, that the school building referred to in the complaint at which the plaintiff is alleged to have been injured was, at the time of the alleged injury, and still is, a part of school district No. D-4 of Greenville County; that said school district was duly laid off according to law. That the building and grounds are under the sole maintenance and control of the duly elected and commissioned trustees of said district No. D-4; and that neither the defendant herein nor any other person, firm, or corporation has authority to supervise, manage, control, or interfere with the school property of said district No. D-4, the same being solely under the control and management of the duly elected and commissioned trustees of said district.
ORDER OVERRULING DEMURRERThe defendant herein served a written notice of demurrer to the complaint, alleging that the complaint did not state facts sufficient to constitute a cause of action.
The matter was argued before me and my conclusion is that the demurrer should not be sustained. The grounds of demurrer may be found in the written notice of the motion.
My reason for so holding is that the complaint upon its face states a cause of action and that the matters urged for sustaining the demurrer should be used in defense of the suit rather than in sustaining the demurrer.
It is therefore ordered that the demurrer be, and the same is hereby, refused.
Messrs. Morgan Cothran, for appellant, cite: As to Court taking judicial notice of fact, law and records: 104 S.C. 116; 104 S.C. 342; 105 S.C. 226; 114 S.C. 480; 117 S.C. 494; 113 S.C. 327; 83 S.C. 509; 112 S.C. 47; 81 S.C. 141; 166 S.C. 415; 21 R.C.L., 509. Demurrer does not admit facts which Court will take judicial notice are not true: 49 C.J., 440; 80 P. 1030; 2 Ann. Cas., 756; 69 L.R.A., 556.
Messrs. H.P. Burbage and P.C. Cothran, for respondent.
February 27, 1933. The opinion of the Court was delivered by
The action, commenced in the Court of Common Pleas for Greenville County, February 16, 1932, by Fred C. Davenport, by his guardian ad litem, as plaintiff, against the defendant, Piedmont Manufacturing Company, a South Carolina corporation, is a suit for recovery of damages for injuries alleged to have been sustained by the infant, the said Fred C. Davenport, on account of alleged wrongful acts of the said defendant, set out in the plaintiff's complaint, which complaint will be incorporated in the report of the case. The case was heard November 21, 1932, before his Honor, Judge J. Henry Johnson, on demurrer to the complaint interposed by the defendant. From the order of his Honor, Judge Johnson, overruling the demurrer, the defendant has appealed to this Court.
Upon due consideration of the entire record in the case, it is our opinion that Judge Johnson reached the proper conclusion in the case, and for the reasons stated by his Honor in the order issued overruling the demurrer, the exceptions are overruled and the said order affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and BONHAM concur.