DAVIS v. RHODES

No. 397.

56 S.E.2d 43 (1949)

231 N.C. 71

DAVIS v. RHODES et al.

Supreme Court of North Carolina.

November 9, 1949.


Attorney(s) appearing for the Case

Allen & Parrott, Allen, Allen & La-Roque, Kinston, for plaintiff appellant.

J. A. Jones, Weston Olin Reed, Kinston, and Thomas B. Griffin, Kinston, for defendant appellees.


BARNHILL, Justice.

Does the original complaint fail to state a cause of action for wrongful death? If so, then the complaint, as amended, was filed more than twelve months after the death of plaintiff's intestate, and the action is barred by the provisions of G.S. § 28-173.

On this question the defendants contend that the original complaint is fatally defective in that it states no cause of action. On the other hand, plaintiff insists that at least it constitutes a defective statement of a good cause of action and that the amendment does not inject new matter but merely particularizes the acts of negligence on the part of the defendants relied on by plaintiff.

The question thus presented involves a question of pleading which has been the subject of discussion in many decisions of this Court. It is useless for us to quote and cite all of them. Suffice it to say that they establish well-recognized principles of law which we have consistently followed.

There is a marked difference between the statement of a defective cause of action and a defective statement of a good cause of action.

When the defect goes to the substance of the cause and not to the form of the statement, it is a defective cause of action which cannot be made good by adding other allegations not included in the original complaint. It is in no event, however expertly stated, an enforceable cause of action. Ladd v. Ladd, 121 N.C. 118, 28 S.E. 190; Lassiter v. Norfolk & C. R. Co., 136 N.C. 89, 48 S.E. 642, 1 Ann.Cas. 456.

When, however, there is an enforceable cause of action stated but the statement thereof is inartificially expressed, or is in general terms, or the facts are not clearly and definitely stated, or it is lacking in some material allegation, it constitutes a defective statement of a good cause. That is, if the defect goes to the form of the statement and not to the substance of the cause, it is a defective statement of a good cause. Lassiter v. Norfolk & C. R. Co., supra; McIntosh, N. C. P. & P., 379.

A demurrer is designed to challenge the sufficiency of a complaint which contains the statement of a defective cause of action, McIntosh, N. C. P. & P., 399, 455, and is to be resorted to when the complaint is fatally defective in this respect. Womack v. Carter, 160 N.C. 286, 75 S.E. 1102, and cases cited; North Carolina Corporation Commission v. Harnett County Trust Co., 192 N.C. 246, 134 S.E. 656; Hoke v. Glenn, 167 N.C. 594, 83 S.E. 807, Ann. Cas.1916E, 250; Hartsfield v. Bryan, 177 N.C. 166, 98 S.E. 379; Foy v. Stephens, 168 N.C. 438, 84 S.E. 758; Bowling v. Fidelity Bank, 209 N.C. 463, 184 S.E. 13; Capps v. Atlantic Coast Line R. Co., 183 N.C. 181, 111 S.E. 533. Answer to the merits does not waive the defect.

That a complaint does not state a cause of action or there is a want of jurisdiction over the subject matter of the action are the radical grounds of objection to a pleading which are not waived by pleading to the merits and may be taken advantage of by demurrer at any time before final judgment. Halstead v. Mullen, 93 N.C. 252; Hanover Nat. Bank v. Cocke, 127 N.C. 467, 37 S.E. 507; Elizabeth City Water & Power Co. v. Elizabeth City, 188 N.C. 278, 124 S.E. 611.

When, however, the complaint alleges or attempts to allege a good cause of action but is defective in that it does not definitely and sufficiently set out all the essential, ultimate facts, or is inartificially stated, or is in general terms, demurrer will not lie if, when liberally construed, the allegations are sufficiently intelligible to inform the defendant as to what he is required to answer. The remedy is by motion to make the complaint more definite. Allen v. Carolina Cent. R. Co., 120 N.C. 548, 27 S.E. 76; Seaboard Air Line R. Co. v. Main, 132 N.C. 445, 43 S.E. 930; Bowling v. Fidelity Bank, supra; Lake Drummond Canal & Water Co. v. Burnham, 147 N.C. 41, 60 S.E. 650, 17 L.R.A.,N.S., 945, 125 Am.St.Rep. 527.

"The general rule is that, if there is any cause of action stated in the complaint, however inartificially expressed, the demurrer will be overruled. Blackmore v. Winders, 144 N.C. 212, 56 S.E. 874; Caho v. Norfolk & S. R. Co., 147 N.C. 20, 60 S.E. 640. If the defendant desired a more certain and definite statement of the alleged negligence, in order that it might know the precise nature of the charge, and so that its answer might be fully responsive to the complaint, the proper remedy was by motion" to make more definite. Jones v. Henderson, 147 N.C. 120, 60 S.E. 894, 896; Gillikin & Gaskell v. Lake Drummond Canal Co., 147 N.C. 39, 60 S.E. 654.

A demurrer to a defective statement of a good cause of action comes too late after answer. The defendant, by answering to the merits, waives the defect which is not fatal but may be cured by amendment. He may, however, move to make the complaint more definite. G.S. § 1-153; Eddleman v. Lentz, 158 N.C. 65, 72 S.E. 1011; Hanover Nat. Bank v. Cocke, supra; Hitch v. Edgecombe County Commissioners, 132 N.C. 573, 44 S.E. 30; Dockery v. Hamlet, 162 N.C. 118, 78 S.E. 13; Livingston v. Essex Investment Co., 219 N.C. 416, 14 S.E.2d 489.

When, as is often the case, counsel resort to a demurrer, rather than a motion to make more definite, to challenge the sufficiency of the statement of a good cause of action and the defect may be cured by amendment, the courts will allow the amendment rather than dismiss the action. Presnell v. Beshears, 227 N.C. 279, 41 S.E.2d 835; Foy v. Stephens, supra; G.S. § 1-129; Dockery v. Hamlet, supra.

This rule applies in negligence cases. In North Carolina Corporation Commission v. Harnett County Trust Co., supra [192 N.C. 246, 134 S.E. 657], the plaintiff alleged that defendants "negligently and wrongfully" engaged in certain transactions which caused the loss for which recovery was prayed. Judgment sustaining a demurrer was reversed. Likewise in Allen v. Carolina Cent. R. Co., supra, it was held that when the complaint is defective in not definitely and sufficiently setting out the negligence complained of, objection thereto should have been taken, not by demurrer, but by motion to have the plaintiff make his complaint more definite. Judgment overruling the demurrer was sustained. Jones v. Henderson, supra, and Gillikin & Gaskell v. Lake Drummond Canal Co., supra, are to like effect. See also Conley v. Richmond & D. R. Co., 109 N.C. 692, 14 S.E. 303. In Dockery v. Hamlet, supra, a wrongful death case, the cause was dismissed on demurrer for that the complaint failed to allege certain essential facts. The judgment was reversed and the cause was left open for amendment.

Here the plaintiff alleges the death of his intestate and that defendant Riggs, agent of defendant Rhodes, approaching from the rear on a public highway, "unlawfully, wrongfully, recklessly, and negligently" drove his vehicle into a motor scooter on which plaintiff's intestate was riding, thereby proximately causing the death of said intestate. This constitutes a defective statement of a good cause of action and not a statement of a defective cause of action. The defendants were thereby informed of the grievance asserted and the remedy sought. Gillikin & Gaskell v. Lake Drummond Canal Co., supra. They deemed it sufficient to call forth an answer. Eddleman v. Lentz, supra. The plaintiff, in voluntarily amending after answer and before demurrer, introduced no new cause of action or new matter. He merely made the complaint more definite by particularizing the acts of negligence relied on. Foy v. Stephens, supra. Hence the action has been pending since its inception. The judgment dismissing the same must therefore be held for error.

The defendants rely on Webb v. Eggleston, 228 N.C. 574, 46 S.E.2d 700, which they assert sustains the action of the court below. But that case is distinguishable. There, a demurrer was interposed and the court, in sustaining the same, adjudged that the original complaint failed to state a cause of action. We may concede, without deciding, that the judgment was erroneous. Even so, plaintiff elected not to appeal. In the absence of an appeal it became the law of the case, binding on us as well as the parties. Necessarily, then, the new complaint constituted new matter and for the first time stated a cause of action. As it was filed more than twelve months after the death of plaintiff's intestate, the action was barred by G.S. § 28-173. Capps v. Atlantic Coast Line R. Co., supra, and George v. Atlantic & Charlotte Airline R. Co., 210 N.C. 58, 185 S.E. 431, are similarly distinguishable.

For the reasons stated the judgment below is

Reversed.


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