Sandlin v. City Of Wilmington, (No. 289.)

• Docket Nº: (No. 289.)
• Citation: 116 S.E. 733
• Case Date: April 04, 1923
• Court: United States State Supreme Court of North Carolina

116 S.E. 733

SANDLIN .
v.
CITY OF WILMINGTON.

(No. 289.)

Supreme Court of North Carolina.

April 4, 1923.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Demurrer.]

[116 S.E. 734]

Appeal from Superior Court, New Hanover County; Devin, Judge.

Action by Agnes Sandlin against the City of Wilmington. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

J. Felton Head, of Wilmington, for appellant.

K. O. Burgwin, of Wilmington, for appellee.

ADAMS, J. The plaintiff alleges that she and her husband occupy a house and lot on Chestnut street; that on the lot is an abandoned closet which has never been used by the plaintiff or by any member of her family or household; that a pipe connects the closet with the sewer in the street; that the sewer is of irregular or insufficient size, particularly at the place of its union with the pipe; that the defect in construction causes an overflow of sewage through the closet upon the lot, and the consequent deposit thereon of refuse and noxious sediment; that such deposit not only causes vile and sickening odors, to the great discomfort, annoyance, and injury of the plaintiff, but causes damage to the yard and premises; and that the defendant permitted these conditions to continue after it had or should have had knowledge of the situation, and has refused and still refuses to abate the alleged nuisance.

The defendant demurred to the complaint on the following grounds: (1) There is no legal obligation on the part of the defendant to remedy the defects or to abate the nuisance referred to in the plaintiff's complaint: (2) the enactment of an ordinance or resolution to abate the nuisance alleged in the complaint is a governmental function, and the city is not civilly liable for failure to pass such resolution or ordinance, or, if such resolution or ordinance had been passed, the defendant could not be civilly liable for failure to enforce the same, or to see that it was observed; (3) the defendant had no control over and could exercise no discretion in the things and matters set out in the complaint; (4) under chapter 62, Public Laws of 1911, there was created a county board of health for New Hanover county, and that said board of health was vested with full authority to enact rules and regulations for the preservation of health, and to enforce the same, and that the defendant had no control over or discretion in the same; (5) the cause of action set out in the complaint is to recover damages for the alleged illness of the plaintiff, and the defendant is not civilly liable for injury to the health of its citizens, and particularly of the plaintiff, growing out of and arising from the things and matters set out in the complaint; (6) section 18, c. 241, Private Laws of 1907, provides that the defendant shall not be liable for damage caused by the negligent construction and maintenance of its sewers.

A demurrer admits the allegations of the preceding pleading, and puts to the test the question of their legal sufficiency; it raises an issue or issues of law upon the facts pleaded, but not a question of fact or an issue of fact; and, when it invokes the aid of a fact which does not appear in the pleading demurred to, it is denominated a "speaking demurrer, " and as such is insufficient. Therefore we cannot consider the defendant's reference in the demurrer to the Public Laws of 1911 or the Private Laws of 1907. These matters may be pleaded in the answer by way of defense. Von Glahn v. De Rossett, 76 N. C. 292; Moore v. Hobbs, 77 N, C. 66; Davison v. Gregory, 132 N. C. 389, 43 S. E. 916; Wood v. Kineaid, 144 N. C. 393, 57 S. E. 4; Wilcox v. Railroad, 152 N. C. 317, 67 S. E. 758; Besseliew v. Brown, 177 N. C. 65, 97 S. E. 743, 2 A. L. R. 862; Trust Co. v. Wilson, 182 N. C. 166, 108 S. E. 500.

With the fourth and sixth sections eliminated the demurrer still presents the question whether the complaint sets out a cause of action. The complaint must be given a liberal construction,...