Revis v. City of Asheville

• Decision Date: 31 October 1934
• Docket Number: 118.
• Citation: 176 S.E. 738,207 N.C. 237
• Parties: REVIS v. CITY OF ASHEVILLE.
• Court: North Carolina Supreme Court

176 S.E. 738

207 N.C. 237

REVIS v. CITY OF ASHEVILLE.

No. 118.

Supreme Court of North Carolina

October 31, 1934

Appeal from Superior Court, Buncombe County; Finley, Judge.

Action by Millard J. Revis against the City of Asheville. From an order adverse to plaintiff, he appeals.

Affirmed.

Appeal by plaintiff from an order of Finley J., at July term, 1934 of Buncombe, allowing motion of the defendant, made in apt time, to have stricken out certain allegations in the reply of the plaintiff, under the provisions of C. S. § 537 Affirmed.

This is a civil action for damages instituted in the general county court of Buncombe, wherein the plaintiff in his complaint alleges that he was injured by the negligence of the defendant in the construction, operation, and maintenance of a swimming pool in a recreation park, and further alleges that the city operated said pool in said park "as a business enterprise for the purpose of deriving to itself revenue and profits, and in competition with, and in the same manner as, the owners of other privately owned and operated parks and swimming pools in the vicinity, * * * and has at all times charged an admission fee for entrance to and use of said swimming pool, * * * and did so derive a profit in the sum of $2788.21 in the year commencing July 1932 * * *."

The defendant in its answer denies the allegation of negligence and also denies that it has ever operated and maintained a swimming pool in a recreation park as a business enterprise for the purpose of deriving revenue and profits for itself or for the purpose of competing with other swimming pools in the vicinity; and in its further defense alleges that "the City of Asheville, through its lawful authorities and in the exercise of its governmental functions as a municipal corporation, acquired, established and constructed a recreation park near its corporate limits, and in the exercise of its governmental functions and prerogatives operated and is now operating said recreation park for the amusement, entertainment and recreation of its citizens and residents, and to promote the health and welfare of its people; that in connection with said park the city maintains as a section or one of the principal features thereof, where it has on display, free of any charge, a large number of rare animals, fowls and reptiles, as well as many other interesting features which are free to the public, and in connection with which there is no service charge to individual members of the public; * * * that in addition to the many other amusement features of said park the defendants, in its capacity as a municipal corporation and in the exercise of its governmental functions and prerogatives, constructed and maintains a swimming pool in said recreation park; that said swimming pool was constructed and has been maintained and is being operated in season for the use and benefit of the public of the City of Asheville, and for the recreation, entertainment and health of the public of said city * * *. That the construction of said pool, and the operation of the same, was not for profit, and the charge made for the use of the same was intended to cover only the actual expenses to the City for the operation of said pool, and for providing the incidental privileges connected therewith, such as locker and lockerroom, shower bath and facilities of this kind, * * * and that the City of Asheville, in the construction, maintenance and operation of said pool, was engaged in the performance of a governmental function, having for its purpose the promotion of the health and welfare of its people; that in so doing, it was exercising its lawful governmental rights and duties as a municipal corporation, and the defendant is advised and believes that it is in no way responsible for any injury the plaintiff may have sustained, and is in no way liable to the plaintiff for any damage resulting therefrom."

The plaintiff in his reply alleges that the defendant "at the time and times hereinbefore mentioned operated the same (the swimming pool) as a business or commercial enterprise and not as a governmental function of said City of Asheville that in connection with said park and in the operation of the same at the time and times hereinbefore mentioned, the said ...