Opinion
16641
June 26, 1952.
Messrs. Lindsay Lindsay, of Bennettsville, for Appellant, cite: As to Complaint not stating a cause of action in that no actionable negligence is alleged, a shop-keeper not being an insurer of the safety of his patrons: 41 Am. Jur. 345, par. 78; 141 S.C. 453, 140 S.E. 105; 216 S.C. 207, 57 S.E.2d 257; 192 S.C. 284, 68 S.E.2d 466; 182 S.C. 106, 188 S.E. 657; 180 S.C. 130, 185 S.E. 184.
Messrs. Russell D. Miller and James F. Covington, Jr., of Bennettsville, for Respondent, cite: As to Complaint stating a cause of action in that actionable negligence is alleged, and, on demurrer, Complaint must be liberally construed in Plaintiff's favor: 191 S.E. 337; 190 S.C. 392, 3 S.E.2d 38; 48 S.E.2d 599; 141 S.C. 453, 140 S.E. 105, 107; 4 Rich. (38 S.C.L.) 228, 55 Am. Dec. 663; 68 S.C. 55, 47 S.E. 975; 20 R.C.L. 56; 214 S.C. 71, 51 S.E.2d 174; 216 S.C. 207, 57 S.E.2d 259; 192 S.C. 284, 6 S.E.2d 466; (S.C.) 70 S.E.2d 911.
2. That on November 17, 1950, plaintiff entered the shop of the defendant, located on Broad Street in the City of Bennettsville, for the purpose of selecting and purchasing a garment; that the weather being brisk and the building occupied by the defendant, Mayfair Shop, being cold, the plaintiff proceeded to the front of the store to warm in front of one of the gas heaters installed therein.
3. That plaintiff warmed the front of her legs by the gas heater, and as she proceeded to turn around in order to warm the back of her legs, the lower calf of her right leg hit the front of the gas heater, thereby causing a burn in the first and second degrees, from which plaintiff received a wafflelike scar which was unsightly and dangerous to infection for several months, and which she will continue to carry for some time.
4. That defendant was negligent, reckless and wilful in that:
a. Defendant allowed a gas heater to be installed in its shop in such a position as to be attractive to and dangerous to customers.
b. Defendant allowed a gas heater to remain in its shop in such a manner as to be a dangerous instrumentality.
c. Defendant did not provide proper care for the protection of the plaintiff, one of its customers, who was an invitee on the premises of the defendant.
5. That as a result of the negligence of the defendant, which was a proximate cause of the injuries received by the plaintiff, the said plaintiff received a first and second degree burn from which plaintiff encountered pain and suffering and the discomfort of being required to endure an unsightly and painful scar for some months, which scar plaintiff will continue to carry all to her damage, in the sum of $5,000.00.
June 26, 1952.
This is an appeal from an order overruling a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, Parenthetically, we observe that the demurrer is also defective in that it does not specify wherein the complaint fails to state a cause of action, but no issue is made thereabout.
For a proper understanding of the issue before the Court, let paragraphs two through five of the complaint be reported herewith.
From a mere casual reading of the complaint, it is so obvious under the applicable principles of law prevailing in this State, that the complaint does not state a cause of action, we feel that it is unnecessary to discuss the issue. See the citations: 41 Amer. Jur., Pleading, Section 78; Bradford v. F.W. Woolworth Co., 141 S.C. 453, 140 S.E. 105; Perry v. Carolina Theater, 180 S.C. 130, 185 S.E. 184; Bolen v. Strange, 192 S.C. 284, 6 S.E.2d 466; Bagwell v. McLellan Stores Co., 216 S.C. 207, 57 S.E.2d 257; Mullinax v. Great Atlantic and Pacific Tea Company, S.C. 70 S.E.2d 911.
In sustaining the demurrer, it is not our intention to preclude the plaintiff respondent from moving in the court below for leave to amend her complaint if she be so advised.
Reversed and remanded.
FISHBURNE, STUKES, TAYLOR and OXNER, JJ., concur.