Parker v. Underwood , 239 N.C. 308 ( 1954 )

79 S.E.2d 765 (1954) 239 N.C. 308

PARKER
v.
UNDERWOOD et al.

No. 761.

Supreme Court of North Carolina.

January 15, 1954.

Arthur Vann, Durham, for plaintiff appellant.

Edwards, Sanders & Everett, Durham, for defendant appellee.

WINBORNE, Justice.

Two questions are presented on this appeal:

1. Did the Honorable C. W. Hall, a special judge of the Superior Court of North Carolina, residing in the Tenth Judicial District, have jurisdiction in Chambers to hear and rule upon the demurrer of defendant filed in this action then pending in the District of his residence?

A similar question was considered and decided affirmatively in opinion this day delivered in the case of Spaugh v. City of Charlotte, N.C., 79 S.E.2d 748, from the Fourteenth Judicial District. And on authority of the decision there made, the question above stated and here presented merits, and is given an affirmative answer.

2. Is the demurrer well taken, and, hence, the action of the court in sustaining it correct? We so hold.

Plaintiff, appellant, contends that under the provisions of G.S. § 20-71.1, subparagraph (a), the allegations of the complaint are sufficient to make out a prima facie case against the defendant Thomas Hugh Underwood. On the other hand, the appellee contends, and properly so, that the provisions of this statute are a rule of evidence, State v. Scoggin, 236 N.C. 19, 72 S.E.2d 54, and do not relieve the plaintiff of alleging the ultimate facts on which to base a cause of actionable negligence.

Hence, for the reasons stated in the demurrer, the complaint fails to state a cause of action against the demurrant.

Therefore, the judgment below is

Affirmed.