No. 245.

112 S.E.2d 380 (1960)

251 N.C. 751

Kathryn P. SHEPARD v. RHEEM MANUFACTURING COMPANY, Piedmont Natural Gas Company, Inc., and Ervin Construction Company, Inc.

Supreme Court of North Carolina.

January 29, 1960.

Attorney(s) appearing for the Case

Blakeney, Alexander & Machen, Hedrick & McKnight, Charlotte, for plaintiff appellee.

Robinson, Jones & Hewson, Charlotte, for defendant Rheem Manufacturing Co., appellant.

WINBORNE, Chief Justice.

The grounds upon which defendant Rheem Manufacturing Company demurs are substantially these: (1) That the complaint as amended fails to state a cause of action against it, and (2) that the complaint contains allegations constituting judicial admissions by the plaintiff as the pleader thereof, from which it follows as a matter of law that the negligence of this defendant, if any, was not a proximate cause of plaintiff's injury by reason of intervening negligence of Ervin Construction Company.

"The office of a 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." Stacy, C. J., in Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761, 763. Clinard v. Lambeth, 234 N.C. 410, 67 S.E.2d 452. Belch v. Perry, 240 N.C. 764, 84 S.E.2d 186, and numerous other cases.

A complaint must contain a plain and concise statement of the facts constituting a cause of action. G.S. § 1-122. Both the statute, G.S. § 1-151, and decisions of this Court require that in the construction of a pleading for the purpose of determining its effect its allegations shall be construed with a view to substantial justice between the parties. Every reasonable intendment and presumption must be in favor of the pleader. Indeed a pleading must be fatally defective before it will be rejected as insufficient. Commence Ins. Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369; Belch v. Perry, supra, and cases there cited, and numerous others.

Applying these principles to the facts alleged in the amended complaint here tested in respect to the first question above stated, it appears that the case comes within the purview of the line of cases of which Rulane Gas Co. v. Montgomery Ward & Co., 231 N.C. 270, 56 S.E.2d 689, 693, is typical. There in opinion by Devin, J., later C. J., it is said: "The general rule is that one who authorizes the use of a potentially dangerous instrumentality in such a mann eror under such circumstances that it is likely to produce injury is held responsible for the natural and probable consequences of his act to any person injured who is not himself at fault. Known danger attendant upon a known use imposes obligation upon him who authorizes it * * * An article is said to be imminently dangerous when, though it may safely be used for the purpose intended if properly constructed, yet by reason of defective construction a threatened injury may be reasonably apprehended from its use," citing authorities.

Now as to the second question: "Insulating negligence relates to proximate cause, and is an intervening act which could not have been reasonably foreseen and which becomes the efficient cause of the injury, and thus breaks the causal connection of the primary negligence"—headnote 4 in the Montgomery Ward case, supra. In the light of this definition applied to the facts alleged in the complaint, the Court is unable to hold as a matter of law that the negligence of Rheem Manufacturing Company, if any, is insulated by that of Ervin Construction Company, if any. It may be that when the evidence is introduced such an issue may arise.

Let it be noted that in this opinion the Court is considering only matters of pleading. What the facts may develop to be on the trial in Superior Court this Court has expressed no opinion and does not now do so.

For reasons stated the judgment of the court overruling the demurrer of Rheem Manufacturing Company is


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


1000 Characters Remaining reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.

User Comments

Listed below are the cases that are cited in this Featured Case. Click the citation to see the full text of the cited case. Citations are also linked in the body of the Featured Case.

Cited Cases

  • No Cases Found

Listed below are those cases in which this Featured Case is cited. Click on the case name to see the full text of the citing case.

Citing Cases