May 21, 1909. The opinion of the Court was delivered by This is an appeal from an order overruling a demurrer to the complaint (which will be set out in the report of the case) on the ground that it does not state facts sufficient to constitute a cause of action.
The first ground of the demurrer was "because the complaint shows on its face that the injury complained of was the result of the plaintiff's own negligent act, or that they negligently contributed thereto." The complaint alleges that "the plaintiffs did not in any way bring about such injuries by their own negligent act, nor did they negligently contribute thereto." Even in cases where such words constitute no part of the cause of action, they are construed as material allegations of fact and dispense with the necessity on the part of the defendant of setting up in the answer the defense of contributory negligence. Long v. Ry., 50 S.C. 49,27 S.E., 531.
For a stronger reason they must be regarded as material allegations of fact, when, as in this case, they constitute a part of the plaintiff's cause of action. Walker v. ChesterCounty, 40 S.C. 342, 18 S.E., 936.
For the purpose of the demurrer, these allegations must be deemed to be admitted. This ground of the demurrer was, therefore, properly overruled.
The second ground of demurrer was, "because the complaint does not state facts sufficient to constitute a cause of action, in that no facts are pleaded, on which to base the allegation, that plaintiffs did not, in any way, bring about such injuries, by their own negligent act, nor did they negligently contribute thereto." If the plaintiffs did nothing, as they allege, to cause the injury, it is difficult to conceive in what respect there was a necessity for further allegations in laying the foundation for proof of a negative.
Appeal dismissed. *Page 569