Opinion
Filed 19 April, 1950.
1. Pleadings 15 — A demurrer should not be sustained if the pleading as a whole states facts sufficient to constitute a cause of action.
2. Same — A demurrer to a single paragraph of the complaint on the theory that such paragraph attempts to set up a second, separate cause of action and fails to state facts sufficient for that purpose, is improvidently granted when the pleading considered as a whole sufficiently states but a single cause of action and the paragraph objected to merely sets forth additional elements of damage, defendant's proper procedure to test plaintiff's right to recover such additional elements of damage being by objection to evidence offered in support thereof.
APPEAL by plaintiff from Harris, J., at the November Term, 1949, of WAKE.
E. D. Flowers and Robert W. Brooks for plaintiff, appellant.
Harris Poe for defendant, appellee.
Civil action involving a policy of insurance providing partial indemnity for expense of surgical treatment and hospitalization occasioned by accidental bodily injuries or by sickness occurring under certain specified conditions.
After the plaintiff had filed a complaint and three amendments thereto containing a grand total of nineteen paragraphs, and after the defendant had fully answered all of the allegations of the plaintiff, the defendant demurred ore tenus to a single paragraph of the plaintiff's pleadings, to wit, paragraph (b) of the third amendment to the complaint, upon the ground that it does not state facts sufficient to constitute a cause of action. G.S. 1-127 (6). The court sustained the oral demurrer, and the plaintiff excepted and appealed, assigning error.
Although the pleadings in this case are both numerous and voluminous, a detailed analysis of their contents is not necessary to the decision of the only question rightly raised by the appeal, i.e., whether the court below properly sustained the oral demurrer directed to only one of the nineteen paragraphs in the plaintiff's pleadings.
This ruling is necessarily based on the theory that the plaintiff undertakes to sue upon two separate causes of action; that one of these causes of action is insufficiently asserted in paragraph (b) of the third amendment to the complaint; and that the other of these causes of action is effectually stated in the remaining eighteen paragraphs of the plaintiff's pleadings.
The court has misinterpreted the allegations of the plaintiff; for she undertakes to state only one cause of action against the defendant. When her pleadings are read as a whole, it appears that the plaintiff elects to treat the insurance contract as wrongly broken and ended by the defendant, and that she alleges a good cause of action against the defendant for the recovery of damages resulting from its wrongful cancellation or repudiation. Abrams v. Insurance Co., 224 N.C. 1, 29 S.E.2d 130, and 223 N.C. 500, 27 S.E.2d 148; Garland v. Ins. Co., 179 N.C. 67, 101 S.E. 616; Trust Co. v. Insurance Co., 173 N.C. 558, 92 S.E. 558. See, also, 45 C.J.S., Insurance, section 465; Levy v. Massachusetts Acc. Co., 124 N.J. Eq. 420, 2 A.2d 341; Pacific Mut. Life Ins. Co. of California v. Rhame, 32 F. Supp. 59.
Paragraph (b) of the third amendment to the complaint does not purport to assert a separate cause of action, or to vary in any degree the cause of action stated in the other eighteen paragraphs of the plaintiff's pleadings. It merely enumerates additional elements or items allegedly going to make up the sum total of the damages resulting from the wrongful cancellation or repudiation of the policy. We express no opinion as to whether such additional elements or items are recoverable by the plaintiff in this action; for lawsuits are to be tried as a whole and not as fractions. The defendant can adequately protect any rights it may have in this connection by objecting to any testimony which the plaintiff may present at the trial to establish the additional elements or items.
It is an established rule of pleading in this jurisdiction that "when there is but one cause of action, or but one defense, a demurrer must cover the whole ground, or else it will be a nullity." Sumner v. Young, 65 N.C. 579. This being true, "a demurrer will not lie to a single paragraph of a complaint, declaration, or petition on the ground that it does not state facts sufficient to constitute a cause of action, if the pleading as a whole states sufficient facts to constitute a cause of action." 41 Am. Jur., Pleading, section 231.
For the reasons given, the judgment sustaining the oral demurrer is
Reversed.