School District v. Marion County

July 26, 1920. The opinion of the Court was delivered by This is an action for damages alleged to have been committed by respondent while repairing a public road, by negligently cutting and destroying shade trees of appellant. Respondent demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. His Honor, Judge Mauldin, sustained the demurrer and dismissed the complaint. *Page 384 Plaintiff appealed, and by two exceptions, which are: "First. In sustaining the respondent's demurrer, thus holding that the action was an action for tort; whereas, he should have held that the action was for actual damages suffered by appellant by the negligent conduct of respondent in repairing a public highway. "Second. In not holding that the complaint stated a cause of action under section 1972 of volume I of Code for damages suffered by appellant, occasioned by respondent in the negligent repair of a public highway." The exceptions are sustained; the complaint states a good cause of action. The demurrer admits the allegations thereof. There is no doubt that the hands, employed by the county in repairing the road, were under the control of the county, acting within the scope of their employment. For any negligent act on their part in building or making repairs on the highway, by which a party is injured, they must respond in actual damages. In the present case demurrer admits damage was inflicted in the negligent repair of the highway. Order appealed from is reversed. Reversed. MR. CHIEF JUSTICE GARY concurs. MR. JUSTICE GAGE. I concur. I think rights ought not to be settled on the pleadings except in a plain case. The testimony will show the presence or absence of a wrong.