Board of Drainage Commissioners v. Jarvis

*692 Stacy, 0. J. Plaintiff’s appeal challenges the ruling upon its demurrer interposed to the “further defense,” or cross action, on the ground that the facts stated therein are not sufficient to constitute a cause of action against the plaintiff in its corporate capacity. C. S., 511. The challenge is well taken. The demurrer should have been sustained. Newby v. Drainage District, 163 N. C., 24, 79 S. E., 266. The answer contains no allegation of negligence against the plaintiff which may properly be made in this action. Craven v. Comrs., 176 N. C., 531, 97 S. E., 470; Shelton v. White, 163 N. C., 90, 79 S. E., 427. All allegations of negligence are directed against the commissioners individually, parties defendant herein, and apparently they have been exculpated from any such negligence by the verdict. See Leary v. Comrs., 172 N. C., 25, 89 S. E., 803. The well considered cases of Spencer v. Wills, 179 N. C., 175, 102 S. E., 275; Sawyer v. Drainage District, ibid., 182, 102 S. E., 273, cited and relied upon by the defendant, are not controlling on the facts presently appearing of record. The complete answer to the argument made on behalf of the defendant is that she has alleged no cause of action against the plaintiff in its capacity as a drainage district, the capacity in which it sues. It is established by the decisions that the board, as well as its individual members, may be liable for negligence, Leary v. Comrs., supra, but the pleadings are not cast in this double mold. There was a directed verdict on the first three issues. The defendant’s appeal brings in question the correctness of this ruling. Without undertaking to detail the evidence, it is enough to say, (1) the defendant Jarvis and her husband, who was then living, were made parties defendant, as nonpetitioners, to the original proceeding brought to establish the district, (2) the first assessment has already been paid — this action being to foreclose the second assessment, and (3) the validity of the district has heretofore been adjudicated in the case of Alspaugh v. Comrs., 197 N. C., 776, 147 S. E., 923. It is not perceived wherein the result upon the first four issues should be disturbed. No fatal error in this respect has been made to appear. At any rate, it would seem that the appealing defendant is either estopped, Lumber Co. v. Drainage Comrs., 174 N. C., 647, 94 S. E., 457; Eaton v. Graded School, 184 N. C., 471, 114 S. E., 689, or is in no position to question the validity of the district on the present record. C. S., 5352 and 5353. On plaintiff’s appeal, reversed. On defendant’s appeal, no error.