MILNER HOTELS, INCORPORATED v. City of Raleigh

155 S.E.2d 543 (1967)

271 N.C. 224

MILNER HOTELS, INCORPORATED v. CITY OF RALEIGH, Gateway Plaza, Incorporated, Seby Jones and Robert D. Gorham.

No. 529.

Supreme Court of North Carolina.

July 24, 1967.

*544 Paul F. Smith and Donald L. Smith, Raleigh, for the City of Raleigh.

Young, Moore, Henderson & Adams, by J. Allen Adams, Raleigh, for plaintiff.

PLESS, Justice.

The City demurred for that the complaint fails to state a cause of action against the City of Raleigh in that there are not sufficient allegations in the complaint to show that the City of Raleigh had any legal duty to perform any of the acts which the complaint alleges that the City failed to perform.

"On a demurrer we consider only the sufficiency of the allegations set forth in the complaint. For the purpose of the demurrer the allegations are taken to be true. A demurrer cannot be sustained to a complaint if in any portion or to any extent it presents a cause of action, or if sufficient facts can be fairly gathered therefrom." Munro v. Carolina Rubber Company, 198 N.C. 808, 153 S.E. 412. "If the complaint be wholly insufficient to state a cause of action, objection should be raised by demurrer; but when only a portion of the pleading or certain paragraphs are insufficient for the purpose for which they are inserted, relief may properly be had by motion to strike the objectionable paragraphs. Thalhimer, Inc., v. Abrams, 232 N.C. 96, 59 S.E.2d 358." Miller v. First Nat. Bank, 234 N.C. 309, 321, 67 S.E.2d 362, 371.

The complaint alleges that the City had utilized and adopted Pigeon House Branch as a part of its storm drainage system and sewer and that, having done so, it was negligent: in permitting obstructions and debris to accumulate in the stream which blocked it and impeded its natural flow; that it took no action to keep the culvert free and clean of obstructions and failed to maintain the channel; failed to take action to correct the dangerous condition, after numerous requests; caused large boulders to be placed in the stream, thus narrowing it and impeding its natural flow and allowed them to remain therein which caused the stream to overflow and damage plaintiff's property. It thus alleges the negligence of the City in omitting to fulfill its duties and also positive and affirmative acts of negligence.

The City relies upon the case of Taylor v. Town of Hertford, 253 N.C. 541, 117 S.E.2d 469, as authority for its lack of responsibility to the plaintiff and suggests that the Court overlooked the holdings of that case in the opinion. In that case, plaintiff's intestate was killed while driving his bread truck on Edenton Road Street in the Town of Hertford when an elm tree fell on the cab of the truck. In affirming the action of the lower Court in nonsuiting the plaintiff's case, the opinion stated: "In sustaining the motion to nonsuit, the court apparently relied on G.S. §§ 136-41.1, [G.S.] 136-93 and [G.S.] 160-54. * * * defendant contends, and we hold rightly so, that these statutes clearly demonstrate that the authority and control over the tree referred to in this action was that of the State Highway Commission. * * the Court holds, applying the statutes, that plaintiff fails to make out a case." However, that case relates to the statutory responsibility of the Highway Commission rather than a municipality for what occurs with reference to a city street that is part of the State Highway system. It is relevant to what constitutes the City's obligation as distinguished from the Highway Commission's obligation under statutes then under consideration, and which no longer appear in the General Statutes according to the numbering existent when Taylor v. Town of Hertford, supra, was decided.

The facts in the Hertford case and the allegations here are easily distinguishable. In the previous opinion we did not overlook or fail to consider the Hertford case. The failure to refer to it was because we could *545 see no relationship to the facts there and the ones alleged here. The citations quoted in the original opinion sustain the ruling that these allegations are sufficient to withstand a demurrer.

The plaintiff alleges also that the City had entered into a contract with the State Highway Commission to maintain, inspect and repair the streets and culverts within the corporate limits of the city and undertook from time to time to perform the promised maintenance under its contract. The last paragraph of the original opinion is:

"The complaint brings this case within the above rule (referring to Johnson v. City of Winston-Salem, 239 N.C. 697, 81 S.E.2d 153, 44 A.L.R.2d 949) when it alleges that the City `entered into a contract and agreement with the State Highway Commission to maintain, inspect and repair the streets and culverts within the corporate limits of the City' * * * and `undertook from time to time to perform the promised maintenance under its contract.'"

Upon further consideration of this paragraph, we are of the opinion that it should be withdrawn. G.S. § 160-54, G.S. § 136-66.1, and G.S. § 136-93 indicate that the Highway Commission is under a statutory obligation with reference to the construction, maintenance and repair of all city streets, including culverts which support city streets, which constitute a part of the State Highway system. While the complaint alleges that the City had contracted with the Highway Commission to take over these responsibilities with regard to the place in question, we cannot interpret these statutes as authorizing a municipality to so contract in the absence of specific legislative authority.

Subject to the above withdrawal, we adhere to the original opinion and hold that the demurrer should have been overruled. The petition is denied.

Petition denied.