Howze v. McCall , 249 N.C. 250 ( 1958 )

106 S.E.2d 236 (1958) 249 N.C. 250

William B. HOWZE
v.
James L. McCALL and James O. Lyons.

No. 244.

Supreme Court of North Carolina.

December 10, 1958.

William H. Booe, Charlotte, for plaintiff appellant.

John H. Small, Charlotte, for James O. Lyons, appellee.

WINBORNE, Chief Justice.

Under decisions of this Court the effect of a judgment by default and inquiry is threefold. "(1) It establishes a right of action of the kind properly pleaded in the complaint. * * * (2) It determines the right of the plaintiff to recover at least nominal damages and costs. * * * (3) It precludes the defendant from offering any evidence, in the execution of the inquiry, to show that the plaintiff has no right of action." So wrote Stacy, C. J., for the Court in DeHoff v. Black, 206 N.C. 687, 175 S.E. 179, 180, citing cases in support of each.

In keeping with the primary effect as just stated, "the default admits only the averments of the complaint and if these are insufficient to warrant the plaintiff's recovery, no judgment can be given, as where it appears that the court has no jurisdiction or the facts do not constitute a cause of action." Mcintosh's N. C. P & P in Civil Cases, Section 712 at p. 713. See also Beard v. Sovereign Lodge, 184 N.C. 154, 113 S.E. 661; Strickland v. Shearon, 191 N.C. 560, 132 S.E. 462; Id., 193 N.C. 599, 137 S.E. 803, and Presnell v. Beshears, 227 N.C. 279, 41 S.E.2d 835.

The question then arises, upon the demurrer ore tenus filed in Supreme Court by defendant, as to whether or not the complaint alleges facts sufficient to constitute a cause of action against defendant Lyons. He has the right to file such demurrer. G. S. § 1-134. Warren v. Maxwell, 223 N.C. 604, 27 S.E.2d 721; Hall v. Queen City Coach Co., 224 N.C. 781, 32 S.E.2d 325; Bailey v. McGill, 247 N.C. 286, 100 S.E.2d 860; Stamey v. Rutherfordton Electric Membership Corp., 247 N.C. 640, 101 S.E. 2d 814; Adams v. Flora Macdonald College, 247 N.C. 648, 101 S.E.2d 809.

A demurrer admits the truth of the allegations contained in the complaint together with relevant inferences of fact necessarily deducible therefrom, but it does not admit conclusions of law. McLaney v. Anchor Motor Freight, 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 the view to substantial justice between the parties." And 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 cited.

In the light of the provisions of the statute, as so interpreted and applied, and in keeping with the primary effect of the default in the judgment by default and inquiry hereinabove set forth, admitting the truth of the facts alleged in the complaint, this Court concludes as a matter of law that the allegations in respect to the defendant Lyons are fatally defective upon the ground that 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: the defendant McCall. See McLaney v. Anchor Motor Freight, supra, and cases there cited. See also Hollifield v. Everhart, 237 N.C. 313, 74 S.E.2d 706; Hooks v. Hudson, 237 N.C. 695, 75 S.E.2d 758; Smith v. Grubb (Propst Construction Co. v. Grubb), 238 N.C. 665, 78 S.E.2d 598; Troxler v. Central Motor Lines, 240 N.C. 420, 82 S.E.2d 342; Potter v. Frosty Morn Meats, Inc., 242 N.C. 67, 86 S.E.2d 780, and others.

And while plaintiff characterizes the individual acts of negligence alleged against defendant Lyons and the individual acts of negligence alleged against defendant Mc-Call as "joint and concurrent", it is patent that this is a conclusion of law which does not follow. For there are no "joint and concurrent" acts of negligence alleged. So then even if it be conceded that defendant Lyons was negligent in parking on the highway, there would have been no collision between the automobile of the plaintiff and the automobile of the defendant Lyons but for the independent intervening acts of defendant McCall.

The controlling principles, as stated in the Hooks case, supra, have been re-stated and applied particularly in the McLaney and Hollifield cases. In each of these, similar in factual situation to the case in hand, the sufficiency of the allegations of the complaint to state a cause of action was challenged by demurrer upon grounds similar to those on which defendant Lyons here relies. And what is said there is applicable here. Hence on authority of these cases and those cited above, the demurrer ore tenus is sustained, and the judgment entered in Superior Court in favor of plaintiff and involved on this appeal is set aside and the action dismissed.

Demurrer Ore Tenus—Sustained.

Appeal by Plaintiff—Action dismissed.

PARKER, J., not sitting.