Wilkie v. Henderson County

Britt, J. Two questions are presented by this appeal: Did the Superior Court commit error in adjudging that certain portions of the complaint should be stricken, and did it commit error in sustaining defendant’s demurrer ore tenus? 1. Among the paragraphs of the complaint affected by Judge Bryson’s order are paragraphs 6, 9, and 10. These paragraphs, along with paragraph 7, relate to the securing of liability insurance and waiver of governmental immunity by defendant as provided by G.S. 153-9(44), part of which reads as follows: “No part of the pleadings which relates to or alleges facts as to a defendant’s insurance against liability shall be read or mentioned in the presence of the trial jury in any action brought pursuant to this subdivision . . .” The statute contemplates that it is appropriate for the complaint to contain allegations regarding liability insurance and waiver of governmental immunity. How else could a complaint, in cases of this kind, survive a demurrer grounded on governmental immunity? [158] Protection against prejudice is afforded by the statute in providing that no part of the pleadings relating to liability insurance shall be read or mentioned in the presence of the trial jury. The cited statute also provides that any contract of insurance purchased pursuant to the statute must be issued by a company or corporation duly licensed and authorized to execute insurance contracts in this State. Paragraph 9 of the complaint sets forth the name of the company and an allegation that it is duly licensed and authorized to issue insurance contracts in North Carolina. We hold that the Superior Court committed error in adjudging that paragraphs 6, 9, and 10 of the complaint should be stricken. Plaintiff was not prejudiced by the striking of paragraph 8 and portions of paragraphs 13 and 17. 2. Upon demurrer a pleading will be liberally construed with a view to substantial justice between the parties, giving the pleader the benefit of every reasonable intendment in his favor. A demurrer admits, for the purpose of testing the sufficiency of the pleading, the truth of factual averments well stated and relevant inferences of fact reasonably deducible therefrom. 3 Strong, N. C. Index, Pleadings, § 12, p. 624, and cases therein cited. Paragraphs 3, 4, and 11 of the complaint are as follows: “3. That in its governmental capacity the defendant owns, maintains and manages the County Jail which is located adjacent to and just west of the Courthouse, and being at the southeast intersection of Second Avenue West and Church Street. “4. That at the time hereinafter mentioned, one George Brian was the County Jailer and one, James Phillips, was the assistant or Night Jailer, both having been appointed and placed in charge of said jail by the defendant. That both the County Jailer and the Night Jailer were public officials or public employees of Henderson County and both were authorized deputies sheriff on the night of October 1, 1966. # # * “11. That at the time and place the plaintiff’s intestate sustained bodily injuries in the County Jail resulting in his death a short time thereafter, the County Jailer and the Night or Assistant Jailer were the duly authorized agents, officials and employees of Henderson County and were acting within the scope of their authority and within the course of their employment.” Defendant’s argument in support of its demurrer is directed to [159] the closing portion of paragraph 4, . . and both were authorized deputies sheriff on the night of October 1, 1966,” and completely ignores paragraph 3, the remaining portion of paragraph 4, and paragraph 11. In Henderson County, until 1943, the sheriff had complete care and custody of the jail under G.S. 162.22. The General Assembly, by Chapter 397, Session Laws of 1943, vested in the Board of Commissioners of Henderson County “the authority to properly operate the Henderson County Jail, and to that end they may employ such assistants at such salary as in their discretion may be expedient.” The Act further provides: “A jailer shall be appointed with the approval of the sheriff of the county. The jailer shall have charge of the prisoners who are incarcerated therein. . . .” A similar local act was enacted by the 1935 General Assembly for Alamance County. Thereafter, the case of Gowens v. Alamance, 216 N.C. 107, 3 S.E. 2d 339, arose involving the status of the jailer. Pertinent principles of law declared in that case by Barnhill, J., (later C.J.) are applicable to the instant case. “There is no such position as deputy sheriff-jailer known to the law.” “While these two offices, or positions, (deputy and jailer) are usually held by one person for convenience and efficiency, they are separate and distinct.” When such person acts in a given instance, he can be acting either as jailer by virtue of his employment by the county or as deputy sheriff under his appointment by the sheriff. Gowens v. Alamance, supra. Where the grounds for demurrer invoke matters not appearing on the face of the complaint, the demurrer is bad as a “speaking” demurrer. Buchanan v. Smawley, 246 N.C. 592, 99 S.E. 2d 787. Our Supreme Court in Ellis v. Perley, 200 N.C. 403, 157 S.E. 29, held that a demurrer to the complaint upon the ground that the statute conferring jurisdiction on the court is unconstitutional is bad as a speaking demurrer. In like manner, defendant in the instant case improperly attempts to attack the constitutionality of Chapter 397 of the 1943 Session Laws, a local act, by demurrer. By its speaking demurrer, defendant attempts to deny and make a positive plea to material allegations of the complaint, particularly paragraph 3, most of paragraph 4, and paragraph 11. This it cannot do, and its demurrer was improperly sustained by the Superior Court. * # Mr This action is remanded to the Superior Court of Henderson [160] County for entry of order in accordance with this opinion and remanding the action to the General County Court of Henderson County for further proceedings. Error and remanded. Campbell and Morris, JJ., concur.