Turner Ex Rel. Turner v. Gastonia City Board of Education

Pabicbr, J.,

dissenting. This proceeding was heard upon a demurrer.

A demurrer lies only when the defect asserted as the ground of demurrer is apparent upon the face of the pleading attacked. Construction Co. v. Electrical Workers Union, 246 N.C. 481 , 98 S.E. 2d 852 ; Cheshire v. First Presbyterian Church, 220 N.C. 393 , 17 S.E. 2d 344 ; Credit Corp. v. Satterfield, 218 N.C. 298 , 10 S.E. 2d 914 ; Kennerly v. Town of Dallas, 215 N.C. 532 , 2 S.E. 2d 538 ; 41 Am. Jur., Pleading, § 208.

A demurrer which requires reference to facts not appearing on the *465 face of the pleading assailed is a “speaking demurrer,” and is bad. McDowell v. Blythe Bros. Co., 236 N.C. 396 , 72 S.E. 2d 860 . In that case the Court said: “The Court will not consider the supposed fact introduced by the ‘speaking demurrer’ in passing on the legal sufficiency of the facts alleged in the complaint.”

The Supreme Court of Vermont said in Vermont Hydro-Electric Corp. v. Dunn, 95 Vt. 144 , 112 A. 223 , 12 A.L.R. 1495 : “It has been held that a demurrer is not aided by facts not appearing in the pleadings, even though conceded at the hearing.”

To drag in matters dehors the pleading assailed by a demurrer would be, in effect, an attempt to try the case on the merits by indirection and prematurely. “Since a demurrer is itself a critic, it ought to be free from imperfections.” McDowell v. Blythe Bros. Co., supra.

The majority opinion states “Houston D. Tolbert, at the time, was an employee of the Gastonia City Board of Education.” My study of claimant’s affidavit filed pursuant to G.S. 143-297, and setting forth her claim does not show that Houston D. Tolbert was an employee of the Gastonia City Board of Education. The stipulation that he was such an employee is dehors claimant’s affidavit. The demurrer is bad, and the lower court should have overruled it.

No formal pleadings are required in proceedings under our State Tort Claims Act. In order to invoke the jurisdiction of the Industrial Commission, the claimant, or the person in whose behalf the claim is made, is required by G.S. 143-297 to file with the Industrial Commission an affidavit in duplicate setting forth certain material facts. G.S. 143-297 does not require the use of legal and technical or formal language, and the claimant is not held to the strict rules of pleading applicable to common law actions. However, the claimant must have in his affidavit, among other things, “a brief statement of the facts and circumstances surrounding the injury and giving rise to the claim” showing that he is entitled to relief, though he need not go further in stating his claim than is required by the provisions of G.S. 143-297.

Dioguardi v. Durning, 139 F. 2d 774 , is to the effect that a complaint under the Federal Tort Claims Act inartistically drawn by a layman must be closely scrutinized to determine if some claim can be found therein. I think the same principle applies to- a complaint under our State Tort Claims Act.

The majority opinion states this proceeding was instituted by filing a verified claim for damages against the Gastonia City Board of Education and the North Carolina State Board of Education. The claim filed states that the injury ,to Beverlyan Turner resulted from the negligence of Houston D. Tolbert, the employee or agent above *466 named, but it doesn’t state whether he was the employee or agent of the Gastonia City Board of Education or the North Carolina State Board of Education. In my opinion, the complaint is not so totally insufficient as to be overthrown by a demurrer.

Gastonia City Board of Education and the North Carolina State Board of Education contend that the Gastonia City Board of Education is not an agency of the State within the meaning of the State Tort Claims Act. They further contend that Houston D. Tolbert was employed by .the local unit, paid by the local unit from local funds, controlled by the local unit as to the details of his work, and answerable to the local unit for the manner in which his work is performed. They further contend that the State Board of Education had no control over his selection or engagement as a janitor, no control over the work he performed, or when he performed it, and no control over the amount or manner of his compensation. The facts as to the employment of Houston D. Tolbert, as contended by Gastonia City Board of Education and the State Board of Education, do not appear in claimant’s affidavit.

I would remand the proceeding to the Industrial Commission to determine whether Houston D. Tolbert is or is not an employee of the State within the meaning of the State Tort Claims Act. G.S. 143-291. When the Industrial Commission has heard the evidence, and found with particularity the facts in respect to his employment, and made its conclusion of law in respect thereto, then the Superior Court and this Court, if appeals are taken, can with safety and accuracy pass upon the question attempted -to be presented by indirection and prematurely on this appeal by a demurrer, which was sustained not upon claimant’s affidavit filed pursuant to G.S. 143-297, but upon a stipulation of the parties dehors claimant’s affidavit.