Stribbling v. Lamm

Supreme Court of North Carolina

Stribbling v. Lamm

80 S.E.2d 270, 239 N.C. 529, 1954 N.C. LEXIS 399

CourtSupreme Court of North Carolina

DecidedFebruary 24, 1954

Docket742

StatusPublished

Cited by7 cases

This text of 80 S.E.2d 270 (Stribbling v. Lamm) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stribbling v. Lamm, 80 S.E.2d 270, 239 N.C. 529, 1954 N.C. LEXIS 399 (N.C. 1954).

Pincite

Opinion

*532 Winborne, J.

The sole assignment of error presented on this appeal is directed to the ruling of the trial court in overruling the demurrer entered by defendants.

“The office of demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the allegations of fact contained therein, and ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted, but the principle does not extend to the admissions of conclusions or inferences of law,” Stacy, C. J., in Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761. See also McCampbell v. B. & L. Assn., 231 N.C. 647, 58 S.E. 2d 617; also Clinard v. Lambeth, 234 N.C. 410, 67 S.E. 2d 452.

Now in respect to the matters alleged in the complaint: In Fitch v. Selwyn Village, 234 N.C. 632, 68 S.E. 2d 255, in opinion by Denny, J., this Court said: “The overwhelming weight of authority in this country is to the effect that ponds, pools, lakes, streams, reservoirs, and other bodies of water, do not per se constitute attractive nuisances. 56 Am. Jur., Water, Section 436, p. 850. ‘The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural, in the absence of some unusual condition or artificial feature other than the mere water and its location/ 65 C.J.S., Negligence, Sec. 29 (12) j, p. 475. It is, therefore, not negligence per se to maintain an unenclosed pond, pool, lake, or reservoir on one’s premises,” citing Barlow v. Gurney, 224 N.C. 223, 29 S.E. 2d 681, and Hedgepath v. Durham, 223 N.C. S22, 28 S.E. 2d 503.

Testing the sufficiency of the allegation of fact by the rule stated above, in the light of the principles set forth in the Filch case, this Court is of opinion that the demurrer is well taken, and should have been sustained. True there are allegations of conclusions of law, but these may not aid the pleader. Indeed, they are in conflict with the Fitch case.

For reasons stated the judgment overruling the demurrer is

Reversed.

Bobbitt, J., took no part in the consideration or decision of this case.

Free access — add to your briefcase to read the full text and ask questions with AI

*532 Winborne, J.

The sole assignment of error presented on this appeal is directed to the ruling of the trial court in overruling the demurrer entered by defendants.

“The office of demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the allegations of fact contained therein, and ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted, but the principle does not extend to the admissions of conclusions or inferences of law,” Stacy, C. J., in Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761. See also McCampbell v. B. & L. Assn., 231 N.C. 647, 58 S.E. 2d 617; also Clinard v. Lambeth, 234 N.C. 410, 67 S.E. 2d 452.

Now in respect to the matters alleged in the complaint: In Fitch v. Selwyn Village, 234 N.C. 632, 68 S.E. 2d 255, in opinion by Denny, J., this Court said: “The overwhelming weight of authority in this country is to the effect that ponds, pools, lakes, streams, reservoirs, and other bodies of water, do not per se constitute attractive nuisances. 56 Am. Jur., Water, Section 436, p. 850. ‘The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural, in the absence of some unusual condition or artificial feature other than the mere water and its location/ 65 C.J.S., Negligence, Sec. 29 (12) j, p. 475. It is, therefore, not negligence per se to maintain an unenclosed pond, pool, lake, or reservoir on one’s premises,” citing Barlow v. Gurney, 224 N.C. 223, 29 S.E. 2d 681, and Hedgepath v. Durham, 223 N.C. S22, 28 S.E. 2d 503.

Testing the sufficiency of the allegation of fact by the rule stated above, in the light of the principles set forth in the Filch case, this Court is of opinion that the demurrer is well taken, and should have been sustained. True there are allegations of conclusions of law, but these may not aid the pleader. Indeed, they are in conflict with the Fitch case.

For reasons stated the judgment overruling the demurrer is

Reversed.

Bobbitt, J., took no part in the consideration or decision of this case.

Cite This Page — Counsel Stack

Bluebook (online)

80 S.E.2d 270, 239 N.C. 529, 1954 N.C. LEXIS 399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stribbling-v-lamm-nc-1954.

Opinion

Related

Cite This Page — Counsel Stack