Opinion
14298
May 15, 1936.
Before HARMON, J., County Court, Richland, January, 1936. Affirmed.
Action by J.D. Fulp, as administrator of the S.C. Emergency Relief Administration, against L.R. Powell, Jr., and Henry W. Anderson, as Receivers of the Seaboard Air Line Railway. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.
The complaint, demurrer, order, and exceptions requested to be reported follow:
COMPLAINTThe plaintiff above named, complaining of the defendants herein, alleges and shows:
(1) That the plaintiff, J.D. Fulp, is the administrator of the South Carolina Emergency Relief Administration, an agency of the State of South Carolina, created under and by virtue of an Act of Congress, passed in 1933, known as the Federal Emergency Relief Act (15 U.S.C.A., § 721 et seq.).
(2) That the defendants, L.R. Powell, Jr., and Henry W. Anderson, are Receivers of the Seaboard Air Line Railway, a corporation organized under the laws of one of the states of the Union other than South Carolina, and that such Receivers are duly appointed and qualified under an order of a competent Federal Court, and that the said Seaboard Air Line Railway is engaged as a common carrier for hire, and as such owns and operates its railway in the State of South Carolina, county and State aforesaid.
(3) That the defendants own and operate its railroad through Mountville, in Laurens County, S.C. and that on the night of September 7, 1934, the defendants, while operating its train, ran over and killed a cow of the plaintiff.
(4) That the defendants carelessly, negligently, willfully, and wantonly failed to operate its train with due care and proper attention and without keeping a proper outlook and keeping said train under proper control and did thus carelessly, negligently, willfully and wantonly killed and destroyed said cow of the plaintiff, and the said cow is worth the sum of $125.00, and that as a result of the careless, negligent, and willful acts of the defendants, the plaintiff, as above set forth, has been damaged in the sum of $125.00, and such was the proximate and direct result of the careless and negligent acts as above alleged.
Wherefore, the plaintiff demands judgment against the defendants in the sum of $125.00 and the costs of this action.
DEMURRERThe defendants hereby demur to the complaint in the above-entitled action upon the following grounds, to wit:
1. That it appears upon the face of the complaint that the plaintiff has not legal capacity to sue for the reason that plaintiff is not a legal entity and may not sue or be sued in any of the Courts of this State.
2. That the complaint fails to set forth facts sufficient to constitute a cause of action, in that it appears upon the face of the complaint that the plaintiff has no title to the property alleged to have been damaged and is therefore without capacity to maintain the action.
ORDERThis matter comes before me on a demurrer to the complaint in the above-indicated action. The defendant demurred on two grounds:
First, "It appears upon the face of the complaint that the plaintiff has not legal capacity to sue for the reason that plaintiff is not a legal entity and may not sue or be sued in any of the courts of this state."
On a second and further ground: "The complaint fails to set forth facts sufficient to constitute a cause of action, in that it appears upon the face of the complaint that the plaintiff has no title to the property alleged to have been damaged and is therefore without capacity to maintain the action." After hearing arguments of counsel, this Court holds that under the case Harris v. Fulp, 178 S.C. 332, 183 S.E., 158, 161, decided by the Supreme Court of this State and filed December 31, 1935, that the title to the property received by the Governor from Federal agencies and in turn delivered to the administrator of the South Carolina Emergency Relief Administration, that such is the property of the State of South Carolina. Therefore the second ground of the demurrer is overruled.
As to the first ground of the demurrer this Court finds in the above-mentioned case of Harris v. Fulp that the Supreme Court has this to say: "We deem it not amiss to state that the complaint does not show on its face that respondents are such legal entities as may sue or be sued." From the above it appears that the Supreme Court holds that the plaintiff in this instance may not sue. It appears to the Court, however, that a property right vested in the State of South Carolina has been injured, but from the above citation by which this Court is bound it seems that the plaintiff has not capacity to sue.
It is therefore ordered that the demurrer be sustained on the first ground, namely, that the plaintiff is not such a legal entity as may sue. This order is issued without prejudice to any rights which the State of South Carolina may have, if any such there be.
EXCEPTIONS1. The Court committed error in sustaining the demurrer of the defendants and in holding that J.D. Fulp, as administrator of the South Carolina Emergency Relief Administration, could not maintain an action in the Courts of this State for damages for the destruction and injury to property that was vested in him as a bailee and public servant and as the administrator of the South Carolina Emergency Relief Administration.
2. The Court committed error in not overruling the demurrer and in not holding that J.D. Fulp, as administrator of the South Carolina Emergency Relief Administration, could maintain an action for damages for the wrongful destruction and injury to property intrusted to him as such administrator and that he, with respect to such property so intrusted to him, was a bailee and a trustee and a public servant charged with the duty of properly protecting and safeguarding and accounting for the property intrusted to him as such public servant.
3. That the Court committed error in not holding and finding that the funds and property which the said J.D. Fulp held and holds as administrator of the South Carolina Emergency Relief Administration were intrusted to him to discharge and fulfill certain duties, and that as such, he was bound and is bound and must give an account of his acts and stewardship, and that by reason thereof, the said J. D. Fulp, as such administrator, could maintain an action in the Courts of this State to protect and recover such property if such was wrongfully taken from him; and that he, as such administrator, had such a property interest in such or property funds so intrusted to him, that he could maintain an action in the Courts to protect same.
4. The Court committed error in not holding and finding that J.D. Fulp, as administrator, occupied, with reference to the funds and property intrusted to him as such administrator of the South Carolina Emergency Relief Administration, the same as a bailee or an individual holding property of another, concerning which he must give an accounting and that as such J.D. Fulp could maintain an action in the Courts to protect his property rights and interests in any funds or property which he held or owned as such administrator.
Mr. Norbert A. Theodore, for appellant, cites: As to title of Federal funds when given to State: 76 F.2d 817; 18 U.S.C.A., 88. Duty of trustee to protect property: 2 Bail., 466; 85 S.C. 346; 67 S.E., 292; 87 S.C. 361; 69 S.E., 666.
Messrs. F. Ehrlich Thomson and J.B.S. Lyles, for respondents, cite: Legal entity defined: 20 C.J., 1273; 76 Fed. 2d 817; 80 Law Ed., 287; 297 U.S. 495; 55 U.S. 837; 79 Law Ed., 1570. As to title of property granted to State: 72 S.W.2d 517. Demurrer: 25 R.C.L., 955; 122 S.C. 158; 115 S.E., 202; 177 S.C. 240; 181 S.E., 31; 148 S.C. 249; 146 S.E., 8; 104 S.C. 268; 88 S.E., 645; 60 S.C. 465. Right of custodian to sue: 106 S.C. 495; 91 S.E., 799; 60 S.C. 465; 57 S.C. 235; 14 S.C. 580.
May 15, 1936. The opinion of the Court was delivered by
This action by J.D. Fulp, as administrator of the South Carolina Emergency Relief Administration, as plaintiff, against the defendants, L.R. Powell, Jr., and Henry W. Anderson, as Receivers of the Seaboard Air Line Railway, was commenced in the Richland County Court by service of summons and complaint, December 17, 1935. The purpose of the action is to recover judgment against the defendants in the sum of $125.00 for the alleged wrongful killing of a cow, owned, according to the allegations of the complaint, by the plaintiff as administrator of the South Carolina Emergency Relief Administration. To this complaint the defendants filed a demurrer, which demurrer was, in due course, heard by his Honor, A.W. Holman, Judge of the said Court of Richland County. Upon due consideration of the demurrer, after hearing argument thereon by counsel representing the parties hereto, his Honor, Judge Holman, sustained the demurrer, and from said order the plaintiff has duly appealed to this Court.
Under the allegations of the complaint it is our opinion that the trial Judge properly sustained the demurrer. This question comes more properly within the province of the legislative branch of the government than in the judicial.
It is therefore the judgment of this Court that the exceptions be, and are hereby, overruled, and the order and judgment appealed from affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE concur.