Summary
In Lewis v. Lee, 246 N.C. 68, 97 S.E.2d 469, the complaint alleged that the vehicle of one defendant suddenly appeared on the highway on the wrong side of the road in front of the other defendant.
Summary of this case from Streater v. MarksOpinion
Filed 10 April, 1957.
1. Pleadings 15 — A demurrer admits the truth of the facts properly alleged, and relevant inferences of fact necessarily deducible therefrom, but it does not admit inferences or conclusions of law.
2. Same — Upon demurrer, the complaint must be liberally construed with a view to substantial justice, giving the pleader the advantage of every reasonable intendment therefrom, and the pleading must be fatally defective before it will be rejected. G.S. 1-151.
3. Automobiles 15, 35 — A complaint alleging that defendant, the driver of the car in which plaintiff was riding as a passenger, was suddenly confronted by a car approaching from the opposite direction on its left of the highway, that defendant, pulled to his left of the highway and that the operator of the other car pulled back to his right and collided with defendant on defendant's left of the road, held insufficient to state a cause of action, since defendant's lot in pulling to the left when confronted by the emergency cannot be held an act of negligence under the circumstances, and the facts alleged show that the collision was independently and proximately produced by the wrongful act of the driver of the other car.
4. Automobiles 35 — Where the complaint alleges in effect that defendant drove to his left of the highway in order to avoid collision with a vehicle suddenly appearing and approaching from the opposite direction on its left side of the highway, and then alleges that defendant drove to his left without due caution and without keeping a proper lookout and in maneuvering his vehicle to turn right into his driveway, the repugnant allegations destroy and neutralize each other, and the remaining allegations are insufficient to show negligence on the part of defendant.
5. Pleadings 19c — 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.
APPEAL by defendant from Moore, Clifton L., J., at October-November 1956 Civil Term, of NASH.
T. A. Burgess and Davenport Davenport for Plaintiff Appellee.
Valentine Valentine and Broughton Broughton for Defendant Appellant.
RODMAN, J., dissenting.
BOBBITT, J., concurs in dissent.
Civil action to recover for personal injuries allegedly proximately caused by negligence of defendant.
It is admitted in the pleadings that on 18 December, 1955, plaintiff was riding as a guest in an automobile owned and operated by defendant Marvin Lee at or about 11:30 a.m., on a rural paved highway leading from Red Oak to Reed's Store in Nash County.
And plaintiff alleges in paragraph 3 of his complaint that "defendant was driving his automobile in a northerly direction at approximately 35 miles per hour and about one mile from Reed's Store and almost in front of defendant's home, when suddenly Dock Richardson, operating an automobile, appeared on the highway in front of the defendant driving in the opposite direction, that is, meeting the defendant and on the wrong side of the road." That "the defendant pulled over beyond the center of the road and to his left-hand side of the road and the automobile being operated by Dock Richardson pulled back to its right and met the defendant Marvin Lee on Lee's wrong side of the road." That "Lee 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 drove over on the wrong side of the road causing and bringing about the collision and damages . . . complained of." And in paragraph 7 of the complaint plaintiff alleges "that the negligence of the defendant, Marvin Lee, in driving his automobile on the wrong side of the road as hereinabove alleged, was one of the proximate causes of plaintiff's injuries and damage."
Defendant, answering, denies that he was negligent as alleged in the complaint, and for a further answer and in bar of plaintiff's right to recover in this action, defendant pleaded assumption of risk; and as the sole and proximate cause of collision negligence of Richardson.
Upon the trial in Superior Court plaintiff was the only witness in respect to the collision.
At the close of plaintiff's evidence defendant (1) demurred ore tenus to plaintiff's complaint, and (2) moved for judgment as of nonsuit. Both motions were overruled, and defendant excepted to each ruling.
Defendant then announced that he would offer no evidence, and renewed (1) his demurrer ore tenus to plaintiff's complaint and (2) his motion, at the close of all the evidence, for judgment as of nonsuit. Both motions were overruled, and defendant excepted to each ruling.
The case was submitted to the jury on two issues, shown in the record, which the jury answered in favor of plaintiff as indicated.
From judgment signed in accordance with the verdict, defendant appeals to Supreme Court, and assigns error.
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. See among many other cases Hollifield v. Everhart, 237 N.C. 313, 74 S.E.2d 706; McLaney v. 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 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, "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. 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, 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. 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 in the act of turning in his driveway at the time of the collision, 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, 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
Reversed.