South Carolina Steamboat Co. v. Wilmington, Columbia & Augusta Railroad

Mr. Justice Gary,

4 dissenting. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action in: “1st. That there is no allegation showing any direct damage to the plaintiff from obstruction to the river that is special to it and not common to the public at large, for which action would lie. 2d. That it appears on the face of the complaint that the alleged obstruction to it was temporary, and only for the purpose of making necessary repairs on the defendant’s bridge across the river.” The complaint contains allegations appropriate to two causes of action: First, a cause of action for damages arising from the obstruction of the navigable highway. Second, a cause of action for damages resulting from the violation of defendant’s promise, which induced the action on the part of the plaintiff, as set forth in the tenth paragraph of the complaint. If the defendant, upon motion, had required the plaintiff to state the causes of action separately, we are of the opinion that a demurrer would properly have been sustained to the cause of action for damages arising from the obstruction of the navigable *337highway; but a demurrer to the cause of action for damages resulting from the violation of defendant’s promise, which induced action on the part of the plaintiff, could not properly have been sustained. When allegations appropriate to several causes of action are commingled in one complaint, and show the plaintiff entitled to some relief, then demurrer is not the proper remedy against any of the causes of action, which are thus commingled. Cartin v. R. R. Co., 43 S. C., 221. This case is quite different from those relied upon by Mr. Chief Justice Mclver, in delivering the opinion of the majority of the court.

These are, in brief, the reasons that cause me to dissent from the opinion of the majority of the Court.