The issues in this case have been complicated by the form of the pleadings. Plaintiff alleges in the first cause of action that the defendant has received certain funds which he was required to turn over to the Treasurer of Spartanburg County but has failed and neglected to do so. Paragraph 3 is as follows: "That the Defendant, in his capacity as a magistrate of the plaintiff-County, received, during the period ending June 30, 1945, the sum of Thirty-one and No./100 *Page 292 ($31.00) Dollars, and from the period from October 1, 1945, to October 10, 1045, the sum of One Thousand and Seventeen and 58/100 ($1,017.58) Dollars, which amounts, by law, the Defendant was required to report to the Plaintiff and required to pay into the hands of the Treasurer of the Plaintiff-County."
In answer to this cause of action, the defendant admits the foregoing paragraph and alleges "that payment has been rendered impossible by circumstances beyond the control of the defendant, and through no fault or breach of duty on his part; and that he exercised always that degree of care required by law under all the circumstances prevailing at the time".
Having admitted collecting the money, it was incumbent upon defendant to allege facts which, if true, would excuse him from liability. It is immaterial for the purpose of this discussion whether the funds should have been paid over to the Treasurer of Spartanburg County or deposited in a bank. In either event, the burden was upon the defendant to allege and show that he had no reasonable opportunity after the money was received to comply with the law and that he used due care to protect the funds while temporarily in his custody. Under the rule adopted in this State, defendant was not an insurer against theft and if the funds were lost in this manner, it was incumbent upon him to allege that fact and the precautions taken to prevent such loss. In other words, it was insufficient to state that the money was lost without fault or negligence on his part, which would be a mere legal conclusion. Facts should be alleged from which an inference of ordinary care might be drawn. Of course, this means the ultimate facts as distinguished from evidentiary facts. Even in the case of an action against a bailee for failure to use ordinary care, the rule laid down by Justice Woods in Fleischman, Morris Co. v. SouthernRailway Co., 76 S.C. 237, 56 S.E. 974, 977, 9 L.R.A., N.S., 519, "is that the bailor must prove delivery to the *Page 293 bailee and his refusal to return as required by the contract of bailment. The burden is then on the bailee to prove that he has not converted the property, and this he may do by showing its loss and the manner of its loss; but by the manner of loss is meant, not only the isolated fact of destruction by fire, or loss by theft or otherwise, but the circumstances connected with the origin of the fire or other cause of loss or injury as far as known to the bailee, and the precautions taken to prevent the loss or injury. From these facts, coupled with any testimony on the subject the bailor may introduce, it is for the jury to say whether the bailee was negligent. This rule is entirely reasonable." Also see Gilland v.Peter's Dry Cleaning Co., 195 S.C. 417, 11 S.E.2d 857;Carroll v. S.C. National Bank, 211 S.C. 406,45 S.E.2d 729.
It is my view that the answer to the first cause of action, stating only a legal conclusion, was insufficient to raise any issue and was subject to demurrer.
The pleadings with reference to the second cause of action raise a more difficult question. Here the plaintiff has assumed an unnecessary burden of alleging certain acts of negligence on the part of the defendant in the handling of the funds collected. All these specifications of negligence are denied by the defendant, which makes an issue for determination by the jury. For this reason, I am in accord with the conclusion that the Court below was in error in sustaining the demurrer to that portion of the answer relating to the second cause of action. Under this view, it becomes unnecessary to determine whether the other matters stated in the answer to the second cause of action are irrelevant and insufficient as a matter of law to constitute a defense. This question should be determined on a motion to strike these allegations. Plaintiff noted an alternative motion to this effect but it was unnecessary to hear it after the Court below concluded that the demurrer to the entire answer should be sustained. I prefer not to intimate any opinion *Page 294 upon this feature of the case until the question is properly before us.
I would sustain the demurrer to that portion of the answer relating to the first cause of action, with leave to the defendant, if he so desires, to amend within twenty days after the filing of the remittitur. I would overrule the demurrer to that portion of the answer relating to the second cause of action, without prejudice to the right of the plaintiff to be heard on its motion to strike.
FISHBURNE and STUKES, JJ., concur.