Ball v. City of Hendersonville

CONNOR, J. The only allegations in the complaint in this action with respect to the demurring defendant, the Board of Financial Control of Buncombe County, are (1) that said defendant is a corporation organized under .and by virtue of the laws of this State; (2) that said defendant is now and was at the time plaintiff’s testator suffered the injuries which resulted in his death the owner of the building located in the city of Hendersonville, and described in the complaint; and (3) that the negligence of said defendant, as specifically alleged in the complaint, in maintaining the stairway on which plaintiff’s testator was walking when he slipped and fell, concurring with the negligence of the defendant, city of Hendersonville, in permitting such maintenance, was a proximate cause of his death. It does not appear on the face of the complaint that said demurring defendant is a corporation organized under and by virtue of chapter 253 of the Public-Local Laws, 1931, of this State, or that said defendant owns the building described in the complaint and maintains the stairway on which plaintiff’s testator was walking when he suffered his fatal injuries, only as an administrative or governmental agency of the city of Asheville, a municipal corporation. These facts are alleged in the answer, and also in the demurrer ore tenus, which was first interposed by the defendant after the action was called for trial. *417 In Sandlin v. Wilmington, 185 N. C., 257, 116 S. E., 733, it is said: “A demurrer admits tbe allegations of tbe preceding pleading and puts to tbe test tbe question of tbeir legal sufficiency; it raises an issue or issues of law upon tbe facts pleaded, but not a question of fact or an issue of fact; and wben it invokes tbe aid of a fact wbicb does not appear in tbe pleading demurred to, it is denominated a “speaking demurrer,” and as such is insufficient. Therefore, we cannot consider tbe defendant’s reference in tbe demurrer to tbe Public Laws of 1913 or to tbe Private Laws of 1907. These matters may be pleaded in tbe answer by way of defense.” Tbe principle thus clearly stated by Adams, J., in tbe opinion for tbe Court in tbe cited case, is well settled. Hanks v. Utilities Co., 204 N. C., 155, 167 S. E., 560; Southerland v. Harrell, 204 N. C., 675, 169 S. E., 423; Ellis v. Perley, 200 N. C., 403, 157 S. E., 29. On this principle, tbe judgment in tbe instant case is Reversed.