Revis v. City of Asheville

Schenck, J. The issuable fact arising upon the pleadings in this ■case, pertinent to this appeal, is whether the defendant, the city of .Asheville, in its construction, operation, and maintenance of a swimming ;pool in a recreation park, was engaged in a business enterprise for profit •or in the performance of a governmental function. "Whether the defendant carried accident and liability insurance upon its amusement devices *240 and facilities, particularly the swimming pool, was no more than a probative fact, the allegation of which the judge, in the exercise of his discretion, could order stricken from the pleadings. Judge, Walker, in Winders v. Hill, 141 N. C., 694 (702), says: “The function of a complaint is not the narration of the evidence, but a statement of the substantive and constituent facts upon which the plaintiff’s claim to relief is founded. The bare statement of the ultimate facts is all that is required, and they are always such as are directly put in issue. Probative facts are those which may be in controversy, but they are not issuable. Facts from which the ultimate and decisive facts may be inferred are but evidence, and therefore probative. Those from which a legal conclusion may be drawn and upon which the right of action depends are the issuable facts which are proper to be stated in a pleading. The distinction is well marked in the following passage: ‘The ultimate facts are those which the evidence upon the trial will prove, and not the evidence which will be required to prove the existence of those facts.’ Wooden v. Strew, 10 How. Pr., 48; 4 Enc. of Pl. and Pr., p. 612.” “If irrelevant or redundant matter is inserted in a pleading, it may be stricken out on motion of any person aggrieved thereby . . .” C. S., sec. 537. Under this statute the Superior Court is authorized in the exercise of its discretion to strike from a pleading any allegations of purely evidential and probative facts. Commissioners v. Piercy, 72 N. C., 181. In McIntosh, N. C. Prac. and Proc., we find the following: “Allegations which set forth evidential . . . matters . . . would be considered irrelevant, . . . and excessive fullness of detail . . . would be redundant.” Sec. 371, p. 378; and further: “The material, essential, or ultimate facts upon which the right of action is based should be stated, and not collateral or 'evidential facts, which are only to be used to establish the ultimate facts. The plaintiff is to obtain relief only according to the allegations in his complaint, and therefore he should allege all of the material facts, and not the evidence to prove them. . . .” Sec. 379, p. 388. "We conclude that the allegation in the reply that the defendant carried accident and liability insurance upon its amusement devices and facilities, particularly the swimming pool, was an allegation of an evidential and probative fact and was in no wise an allegation of a material, essential, or ultimate fact upon which the plaintiff’s cause of action was based, and that there was no error in his Honor’s ordering it stricken out. The plaintiff in his brief takes the position that since it may be competent to introduce evidence of the fact that the defendant carried accident and liability insurance on its amusement devices and facilities, par *241 ticularly the swimming pool, as tending to sbow that said pool was not operated as a governmental function, it follows that it would be proper pleading to allege such fact. We do not understand this to be the rule. However, we do not here pass upon the competency of any evidence that may be introduced at the trial of this cause tending to show that the defendant carried accident and 'liability insurance. It is easily conceivable that upon an issue involving the question as to whether the city was operating the swimming pool in a recreation park as a business enterprise for profit or in the performance of a governmental function such evidence may be competent. If and when the question of the competency of such evidence arises it will be passed upon and determined in the light of such other evidence as may be introduced. The competency of such evidence does not depend upon the allegation which has been stricken from the reply, since the fact as to whether the city carried accident and liability insurance would be only a probative fact and not an issuable fact. Affirmed.