Gilchrist v. Charleston

January 31, 1921. The opinion of the Court was delivered by Plaintiff sued the city to recover damages for a personal injury sustained on December 25, 1917. While he was walking along one of the principal streets of the city, he was struck by a skyrocket, set off by some unknown person, and his left leg was broken.

He alleges that the city council adopted an ordinance, which was of force at the time, prohibiting the setting off of fireworks within the city, except at such times and places as the mayor might permit, that the mayor had not, by proclamation, or otherwise, permitted the setting off of fireworks at or near the place where he was injured, but that the chief of police and the policeman of the city had suspended the ordinance and allowed the setting off of fireworks at that time and place.

The city demurred to the complaint for insufficiency.

The demurrer was overruled and the city appealed. The appeal must be sustained. The facts alleged show nothing more than a violation of an ordinance of the city, which resulted in plaintiff's injury. The chief of police and policemen had no authority to suspend the ordinance. It was their duty to enforce it. The city is not liable for the unwarranted assumption of authority.

It has been settled by repeated decisions of this Court that a municipal corporation, being an agency of the State for governmental purposes, cannot be sued in tort, except where such an action is given by statute. Triplett v. Columbia,111 S.C. 7, 96 S.E. 675, 1 A.L.R. 349. Plaintiff contends that his case comes within the purview of section 3053, vol. I. Code 1912. The decisions construing and applying that section are reviewed in Triplett's case, to which we need only refer. Plaintiff relies upon the case ofBurnett v. Greenville, 106 S.C. 255, 91 S.E. 203, Ann Cas. 1918c, 363. But that case differs from this, on the facts. There it was admitted that the city council authorized the use of a street as a race track for automobiles in a hill climbing contest, thereby making it dangerous for use by others for ordinary purposes of travel. But here, the allegation is that the street was made dangerous, not by any act or omission of the city council, but by the unauthorized action of the police in violation of an ordinance. The complaint alleges no negligence on the part of the city, nor any facts from which negligence can be inferred. Therefore, if it should be conceded that the case might otherwise be brought under section 3053, the facts alleged fail to make a case under that section which makes a city liable only for negligence in the repair of its streets, the meaning of which is fully explained in the case above cited.

Judgment reversed.

The CHIEF JUSTICE and MR. JUSTICE GAGE were absent on account of sickness and took no part in the decision.