No. 235.

97 S.E.2d 469 (1957)

246 N.C. 68

Hugh E. LEWIS v. Marvin LEE.

Supreme Court of North Carolina.

April 10, 1957.

Attorney(s) appearing for the Case

Valentine & Valentine, Nashville, Broughton & Broughton, Raleigh, for defendant appellant.

T. A. Burgess, Rocky Mount, Davenport & Davenport, Nashville, for plaintiff appellee.

WINBORNE, Chief Justice.

Defendant appellant renews in this Court his demurrer ore tenus to the complaint of the plaintiff. It, like the demurrers filed in Superior Court, was upon the ground that the complaint does not state facts sufficient to constitute a cause of action against the defendant for actionable negligence.

For this purpose the truth of the allegations contained in the complaint is admitted, and "ordinarily relevant inferences of fact necessarily deducible therefrom, are also admitted, but the principle does not extend to admissions of conclusions or inferences of law." Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761, 763. See among many other cases Hollifield v. Everhart, 237 N.C. 313, 74 S.E.2d 706; McLaney v. Anchor Motor Freight, Inc., 236 N.C. 714, 74 S.E.2d 36, and cases cited.

Also it is provided by statute, G. S. § 1-151, that "in the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties." And the decisions of this Court interpreting and applying the provisions of this statute require that every reasonable intendment must be in favor of the pleader. The pleading must be fatally defective before it will be rejected as insufficient. See Commerce Ins. Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369, and cases there cited.

In the light of the provisions of the statute, as so interpreted and applied, admitting the truth of the facts alleged in the complaint, this Court is constrained to conclude as a matter of law that the allegations in respect to defendant are fatally defective upon the ground on which the demurrers are predicated, that is, it affirmatively appears upon the face of the complaint that the injury of which plaintiff complains was, as stated by Stacy, C. J., in Smith v. Sink, 211 N.C. 725, 192 S.E. 108, 109, "independently and proximately produced by the wrongful act, neglect, or default of an outside agency or responsible third person," to wit, Dock Richardson. See McLaney v. Anchor Motor Freight, Inc., supra, and cases cited.

The facts alleged show that defendant was traveling at a speed of 35 miles per hour, when the car driven by Dock Richardson suddenly appeared in front of defendant on defendant's right side of the road. Under such circumstances, as contended by appellant in brief filed in this Court, defendant was "confronted with the choice of meeting the Richardson car head-on or turning to his left in the hope of avoiding a head-on collision." Compare Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383. Indeed the allegations present a factual situation similar to that in Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E.2d 337, 341, where Barnhill, C. J., writing for the Court declared: "That the bus driver, when he saw the automobile enter the highway just ahead of him, cut his bus to the left and crossed the center line cannot, under the circumstances of this case, be held an act of negligence. It is a human instinct when a collision is impending between two vehicles to turn or cut away from the other vehicle. The evidence here discloses that it was done in an effort to avoid the collision. There is no circumstance tending to show that it was other than what a man of reasonable prudence would have done."

While it is true that it is set forth in the complaint that the defendant was in the act of turning in his driveway at the time of the collision, and had carelessly, negligently and without proper lookout and due caution driven over on the wrong side of the road causing and bringing about the collision and damages of which complaint is made, this is no more than a conclusion of the pleader and is negatived by the facts alleged immediately prior thereto in the same paragraph. The two allegations cannot be reconciled. This brings the case within the principle set forth in Lindley v. Yeatman, 242 N.C. 145, 87 S.E.2d 5, 10, that is, that "where in stating a single cause of action the complaint alleges two repugnant statements of fact, the repugnant allegations destroy and neutralize each other, and where, with the repugnant allegations thus eliminated, the remaining averments are insufficient to state a cause of action, demurrer will lie." See McIntosh, N. C. Practice & Procedure, Section 353; 21 Am.Jur. Pleading, Section 221.

Hence for error in overruling demurrers ore tenus the judgment from which appeal is taken is


RODMAN, Justice.

I dissent from the opinion of the majority, not because of any disagreement as to legal principles, but because I think the language of the complaint describing the factual situation and defendant's conduct is sufficiently broad, even though lacking in details, to authorize recovery when interpreted in the light of plaintiff's testimony describing the situation under which the collision occurred. He testified: "We were coming down the road and just before we got to Marvin Lee's avenue, which was on our right side that we were on, I looked up and I saw a car coming around the bend up there by the tobacco barns on the Tucker farm and when he come around the curve he was on our side of the road. He was between 250 and 300 yards, probably 400, from us at that time. He stayed on our side of the road a right good while. I would say the car coming towards us got within 35 or 40 yards when he turned into his side of the road." Again he testified: "When we were about 35 to 45 yards apart, Richardson swerved across the road a little bit. He looked like he might have looked up and saw us. He won't directly on our side, but he was straddling the center line when he went across to his proper side. He got on his side fully 45 yards from us; he was on his side then. * * * I don't say that Lee cut to his left when he was about 35 or 45 yards from Richardson to keep from having a wreck. I told you before that there was room on that dirt on Lee's side that he could have got off on his side. There's six feet of flad land there * * *"

The Court treats the allegation of the complaint that Dock Richardson suddenly appeared on the wrong side of the road as having only one meaning: that he suddenly appeared in such close proximity as to create an emergency for which defendant was not responsible. I concede that it might have that meaning, but I think that it may as well describe the condition depicted by plaintiff; viz., that the vehicles were 250 to 400 yards apart when Dock Richardson turned the corner or curve on the wrong side of the road. Such a situation bears no resemblance to the factual situation described in Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383, nor in Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E.2d 337, relied upon by the majority to sustain their position. Defendant did not object to plaintiff's testimony describing the situation. The facts related do not, as a matter of law, in my opinion, portray a sudden emergency created without fault of defendant. Plaintiff could not, of course, allege one cause of action and recover on a different factual situation. The probata must correspond to the allegata. Hence, it seems to me, that the interpretation placed on the pleadings at the trial by plaintiff, by defendant, and by the court that the facts alleged accorded with the testimony ought now to be accepted by this Court as a correct interpretation of what the plaintiff intended to say when he filed his complaint. If it was lacking in detail, defendant's remedy was by motion to make it more specific and certain.

I think the pleadings suffice to permit the plaintiff to offer evidence. I think there is evidence on which the jury could find in favor of the plaintiff. Hoke v. Atlantic Greyhound Corporation, 227 N.C. 412, 42 S.E.2d 593. No exception was taken to the charge of the court. It is my opinion defendant has not demonstrated error.

BOBBITT, J., concurs in dissent.


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