DIZE AWNING AND TENT CO. v. City of Winston-Salem , 271 N.C. 715 ( 1967 )

157 S.E.2d 577 (1967) 271 N.C. 715

DIZE AWNING AND TENT COMPANY
v.
CITY OF WINSTON-SALEM.

No. 443.

Supreme Court of North Carolina.

November 8, 1967.

Deal, Hutchins & Minor, by William K. Davis and John M. Minor, Winston-Salem, for plaintiff appellant.

Womble, Carlyle, Sandridge & Rice, by W. F. Womble and I. E. Carlyle, Winston-Salem, for defendant appellee.

PLESS, Justice.

The plaintiffs complain that in the procedure used by Judge Gambill he gave judgment on the pleadings, considering also the stipulations of the parties. It is true that "[o]n a motion for judgment on the pleadings, the presiding judge should consider the pleadings, and nothing else * * * He should not hear extrinsic evidence, or make findings of fact * * *" Remsen v Edwards, 236 N.C. 427, 72 S.E.2d 879. However, the record does not show a motion for judgment on the pleadings, and Judge Gambill is careful to say that the Court conducted "a preliminary conference * * * to consider the pleadings, settlement of issues, motions to strike and to amend pleadings and possible stipulations; upon consideration of the plaintiff's pleadings and the stipulations of fact agreed upon by the parties, the Court is of the opinion and holds as a matter of law that the plaintiff is not entitled to recover of the defendant in this action. * * * [U]pon the plaintiff's pleadings and the stipulations of fact, IT IS ORDERED, ADJUDGED AND DECREED that the plaintiff shall have and recover nothing * * *"

The record does not show a motion for judgment on the pleadings, nor is it so designated.

We think the procedure used by Judge Gambill comes within the rule tersely stated by Parker, J. (now C. J.) in Jamison v. Charlotte, 239 N.C. 682, 80 S.E.2d 904:

"It is passing strange that plaintiff's counsel ``objects and excepts to each finding of fact embodied in the judgment,' when each fact found by the Judge was either alleged in the Complaint, which they signed, and was admitted in the defendants' Answer, or copied verbatim from a stipulation and agreement of facts which they and the defendants' counsel signed."

In these days of crowded calendars, over-worked courts and too little time to do so much, we would encourage any efficient and justified method which arrives at the proper result, while giving to all parties a full day in court.

Although the plaintiff was insisting upon a trial by jury and the right to introduce additional evidence, no good purpose could be served by using hours to select a jury and conduct a trial if the judge were correctly of the opinion that the plaintiff could not by the presentation of additional evidence present a jury question. So—the result here must turn upon the decision of the Judge that the pleadings and stipulated facts were such that no evidence could be introduced by the plaintiff that would require a jury determination. In effect, we must determine whether the pleadings and stipulations considered in the light most favorable to the plaintiff would withstand a motion for nonsuit.

We grant that there are allegations upon which a jury should be allowed to determine the defendant's plea of contributory negligence in the use by the plaintiff of a smaller pipeline under its building to convey the water contents of the larger one, and also the claim by the defendant that the plaintiff assumed the risk of damage to its property by so doing. We must recall, however, that the Court was without knowledge of the evidence the plaintiff could offer to repel these claims. We cannot deny it the opportunity to do so, and it must be remembered that upon these contentions the burden would be on the defendant—not the plaintiff.

And now, turning to the plaintiff's position, construed most favorably to it, the plaintiff alleges that by the City's action in removing a 36-inch pipe or culvert, which was guarded by the use of covers, grilles, and other protective devices, and replacing it with a larger one, without grilles or other devices to prevent tires and other large debris from entering it, it created a condition that would flood plaintiff's property when they could not be accommodated by plaintiff's smaller culverts. In blocking the plaintiff's culverts they would naturally cause water to pond and flood plaintiff's property, which plaintiff alleged resulted in $75,000 damage.

Here, we think the following excerpt from Milner Hotels, Inc. v. Raleigh, 268 N.C. 535, 151 S.E.2d 35, is applicable:

"In Johnson v. City of Winston-Salem, 239 N.C. 697, at p. 707, 81 S.E.2d 153, 44 A.L.R.2d 949, which is cited by the Present Chief Justice Parker, in Hormel & Company v. City of Winston-Salem, 263 N.C. 666, at p. 675, 140 S.E.2d 362, it is said: ``The general rule is that a municipality becomes responsible for maintenance, and liable for injuries resulting from a want of due care in respect to upkeep, of drains and culverts constructed by third persons when, and only when, they are adopted as a part of its drainage system, or the municipality assumes control and management thereof.' That this is the generally accepted rule is shown by the following excerpt: ``The rule as to municipal liability for defects and obstructions in sewers and drains * * * remains the same whether a natural watercourse is adopted for drainage purposes or an artificial channel is built; and, where a municipality has assumed jurisdiction over a stream flowing into the city, it may become liable for injury caused by its negligence in the control of the water. Where a city adopts a natural watercourse for sewerage or drainage purposes, it has the duty to keep it in proper condition and free from obstructions, and it is liable for damage resulting from neglect therein.' 63 C.J.S. Municipal Corporations § 877 p. 262."

The City claims that the old 36-inch culvert had been installed by others when the area was annexed by it in 1919, that thereafter it maintained it and that in 1960 it replaced it with a 42-inch concrete culvert. To maintain the existing culvert for forty years and then to revise and enlarge the method of controlling the drainage, even from a natural watercourse, would be to assume its control and management and require it to use reasonable diligence to keep the drain in good repair and condition and render it liable to one damaged by its negligence in this respect. 38 Am.Jur., Municipal Corporations, § 637.

"If sewers, drains, or culverts constructed by third persons, are in some legal manner adopted by the municipality as a part of its sewage or drainage system, or the municipality assumed control and management thereof, the municipality becomes liable for injuries resulting therefrom, since in such cases it is immaterial by whom the sewer, drain, or culvert was constructed." McQuillin, Municipal Corporations, 3rd Ed. Rev., Vol. 18, § 53.118.

While most of the cases deal with alleged damage to owners above the point of obstruction, it was held in Sherill v. North Carolina State Highway Commission, 264 N.C. 643, 142 S.E.2d 653, that a governmental unit is liable also to a lower riparian owner. Whether the plaintiff can substantiate its allegations remains to be seen, but it is entitled to the opportunity to do so. As said by Stacy, C. J., in Abernethy v. Burns, 206 N.C. 370, 173 S.E. 899: "He may not get to first base, but he is entitled to come to the bat."

Reversed.