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ALDERMAN v. BIVIN

December 8, 1958

ROBERT H. ALDERMAN, APPELLANT,
v.
M.L. BIVIN AND C.W. MEREDITH, INDIVIDUALLY AND AS CO-PARTNERS IN TRADE, DOING BUSINESS UNDER THE NAME AND STYLE OF FLORENCE TRUCK TERMINAL, RESPONDENTS.



The opinion of the court was delivered by: Moss, Justice.

December 8, 1958.

It is further alleged that Great Central Insurance Company, the insurer for respondents, paid to the appellant the sum of $30.06 for which appellant signed and delivered a release and discharge in favor of the respondents "of all claims arising as a result of the freezing above set forth."

The complaint likewise alleges that the appellant believed that the only damage to the said Dodge truck consisted of the blown gaskets, and the respondents likewise believed that the said truck would not suffer the complete loss of its engine, and that at the time of said settlement none of the parties knew the conditions that would eventually necessitate the replacement of the entire engine in said truck. It is then alleged that the parties reached an agreement of settlement acting on a common but mistaken belief that the engine block in the said Dodge truck was not damaged as a result of the freeze above set forth, and without knowledge of the facts and in ignorance of the true condition of said engine. It is alleged that some time after the settlement, the said truck being subjected to normal usage and high engine temperatures and pressures incident thereto, a breakage came in the engine block and the freezing above set forth was the exclusive cause thereof.

The complaint asserts that neither the appellant nor the respondents nor the insurance carrier intended to pay or receive payment for breakage and replacement of the engine in the said Dodge truck, and neither of them knew or believed, or had reason to know that any such damage could or would arise from said freezing. The appellant asserts that he would not have accepted the payment and signed the release had he known the facts as to the true condition of the engine in said truck. The complaint then alleges damage in the amount of $475.00, being the cost of the engine replacement, and for the inoperation of the truck for a period of three days. It is asserted that under a "mutual mistake of fact" that Great Central Insurance Company, acting for the respondents, paid to the appellant the sum of $30.06, for which appellant delivered a release and discharge in favor of the respondents. The prayer of the complaint is that the said release be rescinded and declared null and void by reason of mutual mistake of fact under which it was executed and delivered, and that the appellant have judgment for the sum of $475.00, the damages alleged to have been sustained by the appellant.

The respondents filed a demurrer on the ground that the complaint states insufficient facts to constitute a cause of action, the complaint showing on its face that the appellant released the respondents from all claims arising out of the occurrence alleged in the complaint.

The demurrer was heard by the Honorable G. Badger Baker, Judge of the Twelfth Circuit. Thereafter, he filed an order sustaining the demurrer and ruling that the allegations of mutual mistake of fact constituted only conclusions of fact which were not admitted by the demurrer. He also held that the allegations of the complaint showed that whatever mistake was made was that of the appellant or his agent or representative rather than by the respondents or their agent or representative. He likewise held that the allegations of the complaint do not show a mutual mistake of fact which would entitle the appellant to a rescission of the release.

The exceptions of the appellant raise the questions, (1) Was the court in error in holding the allegations of mutual mistake in the complaint constitute nothing more than conclusions of fact which were not admitted by the demurrer? (2) Did the Court err in holding that the allegations of the complaint show that whatever mistake was made was that of the appellant or his agent rather than by the respondents or their agent, and that the allegations of the complaint show no mutual mistake of fact?

In the recent case of Roper v. South Carolina Tax Commission, 231 S.C. 587, 99 S.E.2d 377, 378, we said:

"It is elementary that in passing upon a demurrer, the Court is limited to a consideration of the pleadings under attack, all of the factual allegations whereof that are properly pleaded are for the purpose of such consideration deemed admitted. Spell v. Traxler, 229 S.C. 466, 93 S.E.2d 601. If a complaint states any cause of action, a demurrer should not be sustained. Fleming v. Pioneer Life Ins. Co., 178 S.C. 226, 182 S.E. 154. It has also been held that when a fact is pleaded, whatever inferences of law or conclusions of fact may properly arise from it, are to be regarded as embraced in such averment. Bryant v. Smith, 187 S.C. 453, 198 S.E. 20."

In the case of Oliveros v. Henderson, 116 S.C. 77, 106 S.E. 855, 857, this Court said:

"The demurrers admit the facts alleged in the complaint, but do not admit the inferences drawn by plaintiffs from such facts, and it is for the court to determine as to whether or not such inferences are justifiable; * * *"

In the case of Dahlberg v. Brown, 198 S.C. 1, 16 S.E.2d 284, an action was brought by a certified public accountant against the administratrix of an estate for services rendered to the estate. A demurrer interposed to the complaint which alleged that the defendant had gone through the form of being relieved of her duties as Administratrix, which form was a nullity on the ground that the defendant secured such relief while knowingly leaving unpaid indebtedness of the estate, did not admit the allegation in question as a demurrer admits facts but not conclusions of law or fact, nor inferences drawn from such facts.

In the case of Henderson v. McMaster, 104 S.C. 268, 88 S.E. 645, where it was alleged that by reason of the enactment of a statute a foreign insurance company was compelled to withdraw from the state, such an allegation ...


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