Cummings v. . Dunning

185 S.E. 653, 210 N.C. 156, 1936 N.C. LEXIS 41

• Court: Supreme Court of North Carolina
• Decided: May 20, 1936
• Status: Published

Opinion

Devin, J.

Demurrer ore terms to the complaint as amended having been sustained, it is necessary to examine the allegations therein set forth to determine whether in any view a cause of action has been stated.

As was said in Ramsey v. Furniture Co., 209 N. C., 165: “On a demurrer the statute (C. S., 535), requires that we construe the complaint liberally with a view to substantial justice between the parties. The demurrer admits the truth of all the material facts alleged, and every intendment is adopted in behalf of the pleader. A complaint cannot be overthrown by a demurrer unless it be wholly insufficient. If in any portion of it, or to an extent it presents facts sufficient to constitute a cause of action, the pleading will stand. It must be fatally defective before it will be rejected as insufficient. S. v. Trust Co., 192 N. C., 246; Lee v. Produce Co., 197 N. C., 714.”

The principles of law applicable to the facts here alleged have been fully set forth in an able and elaborate opinion by Mr. Justice Schenck in Brannon v. Sprinkle, 207 N. C., 398, and need not be here restated. In that case, and in the cases cited in support of the conclusion there reached, the courts were dealing with children who were trespassers rather than invitees, and to whom the dangerous conditions were attractive.

But in the instant case it is alleged the defendants maintained for pleasure and recreational purposes a lake or pond thirty or forty feet deep, with no enclosure around it on the side adjacent to a road connecting two streets “in the edge of a thickly settled city”; that the pond was naturally hazardous and had been the cause on several occasions of the drowning of children to the knowledge of the defendants; that defendants had invited numerous immature children, including members of the family of plaintiff’s intestate, to come upon the premises and make use of said lake, and without any warning against the use of so deep a lake, permitted, encouraged, and invited the continuous use of the premises by immature children.

It is proper to say that in their answer the defendants deny these allegations and allege that the pond was protected by a fence and locked gate, and that plaintiff’s intestate was forbidden to enter. But we are considering only the allegations in the plaintiff’s complaint. We are not dealing with questions of evidence or proof. Whether plaintiff can sustain his allegations on the trial is another matter.

There was error in sustaining the demurrer.

Reversed.