I am unable to concur in so much of this opinion as holds that the demurrer, as stated in Paragraph one thereof, was properly overruled. The enabling statute under which this action is brought is in derogation of sovereignty. Under the settled rule of this jurisdiction it must be strictly construed. The complaint alleges that Arthur Athanas came to his death by being struck and run over by a truck owned by the defendant and being operated by an agent and servant of the defendant, that the truck at the time was being used by the defendant for the purpose of repairing and maintaining the streets. The complaint further alleges, upon information and belief, that the injury and death of plaintiff's *Page 33 intestate was directly and proximately caused by the mismanagement and negligence of the defendant, it agents and servants, in the use of an instrumentality in the repair and maintenance of the streets in the following particulars: The driver of the truck was operating it without keeping a proper lookout; the driver of the truck was operating it at a reckless rate of speed, greater than was reasonable and proper under the circumstances, contrary to the laws of the State and in violation of Section 272, subsection 55, of the Code of Ordinances of the City of Spartanburg; that the truck was being driven so as to enter one street from another at a greater speed than is permitted by the ordinance of the city; that the truck was being operated at an unlawful rate of speed, contrary to law and to the provisions of Section 272, subsection 33 of the ordinances of the city; that the death of Arthur Athanas was not brought about by his own negligence, nor did he negligently contribute thereto; nor was it brought about by the negligence of the persons for whose benefit this action is brought, nor did they negligently contribute thereto.
At best this amounts to nothing more than the allegation that the truck was kept and used by defendant for the general purpose of repairing and maintaining its streets. Nowhere is it alleged, nor any facts stated to show, that any street was then in need of repairs and was being repaired by the truck. I think defendant was entitled to know what defect there was, if any existed in the street, and if it was then being repaired by the truck. Under the general allegations of the complaint, plaintiff may attempt to prove a defect in any street in the city and defendant would not be prepared to meet it.
The main opinion offers authority in support of its argument that the Code provides that pleadings must be liberally construed. That is true, generally. But it is the settled rule of this jurisdiction that all pleadings which rely upon a statute in derogation of the sovereignty of the State must be strictly construed. *Page 34
I apprehend that if the loose pleading of this character is approved, municipalities may anticipate a deluge of damage suits.
For these reasons, I am constrained to dissent.