Lynn v. Clark , 254 N.C. 460 ( 1961 )

119 S.E.2d 187 (1961) 254 N.C. 460

R. C. LYNN, Administrator of the Estate of David Lee Lynn, deceased,
v.
Mildred M. CLARK and William L. Clark, Administrator of Charles Clark, deceased.

No. 313.

Supreme Court of North Carolina.

April 12, 1961.

W. Harold Mitchell, Valdese, John H. McMurray, Morganton, for plaintiff appellant.

Patton & Ervin, Morganton, for defendant appellee.

WINBORNE, Chief Justice.

The determinative question on this appeal is whether or not the complaint states a cause of action against William L. Clark, as administrator of the estate of Charles Clark, deceased.

The defendant here contends that the complaint fails to allege either that William L. Clark was the administrator of Charles Clark, deceased, or that he had qualified and was acting as administrator of said estate, and that, therefore, the court properly sustained his demurrer. It is true that, except for the captions, William L. Clark is not referred to specifically in the pleadings as administrator. However paragraph 3 in pertinent part alleges "that William L. Clark's intestate, Charles Clark, died a resident of Burke County, North Carolina." Plaintiff moved to amend paragraph 2 by adding: "That William L. Clark was duly appointed Administrator of the Estate of Charles Clark, deceased, on the 26th day of July, 1958, by the Clerk of the Superior Court of Burke County, and that he is now the duly appointed, qualified and acting administrator of the estate of Charles Clark, deceased." As stated above this motion was denied.

Nevertheless, the language of the complaint, properly interpreted, shows a suit against William L. Clark, Administrator. The allegation in paragraph 3 shows that William L. Clark purported to act in some capacity for the estate of Charles Clark. It certainly indicates it was intended that he be sued in a capacity other than individually. While a complaint should specifically allege whether the action is brought against the defendant in his representative capacity, it is sufficient if the complaint, taken as a whole, shows that the defendant is being sued in a representative capacity, though it is not expressly so alleged. In Giguere v. Rosselot, 110 Vt. 173, 3 A.2d 538, the Supreme Court of Vermont so holds.

Indeed, we think that the allegations of the complaint indicate with reasonable certainty that the defendant is being sued in a representative capacity, and that this is sufficient to fix the character of the action even though there is no express or specific averment thereof. See Reddy v. Johnston, 77 Idaho 402, 293 P.2d 945, citing 67 C.J.S. Parties § 100, p. 1096.

Furthermore, the answer filed by the defendant in answer to the allegations of the complaint admits the above-mentioned allegation in paragraph 3. We think this further tends to show that the defendant recognized the fact that the action was brought against him in his representative capacity. An action should be treated as individual or as representative, as its true nature is disclosed by an inspection of the whole record. See Massey v. Payne, 109 W.Va. 529, 155 S.E. 658.

In fine, the office of the demurrer is to test the sufficiency of a pleading, admitting for the purpose the truth of factual averments well stated and such relevant inferences of fact as may be deduced therefrom. Moreover, a pleading challenged by a demurrer is to be construed liberally with a view to substantial justice between the parties. G.S. § 1-127; G.S. § 1-151; McKinley v. Hinnant, 242 N.C. 245, 87 S.E.2d 568; Jacobs v. State Highway Comm., 254 N.C. 200, 118 S.E.2d 416.

Therefore the conclusion is that the complaint states a cause of action and the court erred in sustaining the defendant's demurrer ore tenus.

The case will be remanded to the court below to the end that further proceedings be had as to right and justice appertain and the law directs.

Error and remanded.