Opinion
17840
October 30, 1961.
Messrs. Leatherwood, Walker, Todd Mann, of Greenville, for Appellant, cite: As to the respondent not having a cause of action against the Appellant-landlord under the allegations of the complaint: 164 S.C. 361, 162 S.E. 329; 173 S.C. 299, 175 S.E. 531.
Messrs. Calvin L. Bridges and Marvin R. Watson, of Greenwood, for Respondent, cite: As to respondent being allowed to plead over after trial Judge sustained demurrer to original complaint: 211 S.C. 357, 45 S.E.2d 331. As to there being an actionable cause when properly pleaded: Black's Law Dictionary, 3 Ed., 1263; 231 S.C. 404, 98 S.E.2d 843; 218 S.C. 211, 62 S.E.2d 297, 304; 233 S.C. 345, 105 S.E.2d 81.
Messrs. Leatherwood, Walker, Todd Mann, of Greenville, for Appellant, in Reply.
October 30, 1961.
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 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.