Jefferies v. State Farm Mutual Automobile Insurance , 4 N.C. App. 102 ( 1969 )

Brock, J.

When a party moves for judgment on the pleadings, he admits these two things for the purpose of his motion, namely: (1) The truth of all well-pleaded facts in the pleading of his adversary, together with all fair inferences to be drawn from such facts; and (2) the untruth of his own allegations insofar as they are controverted by the pleading of his adversary. Erickson v. Starling, 235 N.C. 643, 71 S.E. 2d 384; Setser v. Development Corp., 3 N.C. App. 163, (filed 11 December 1968).

By plaintiff’s complaint, and his admissions by reply, the defendant’s rights of subrogation are established; the recovery by plaintiff of full damages to his automobile is established; the offer by defendant to pay plaintiff the full amount claimed under its contract of insurance is established; and plaintiff’s refusal to assign to defendant, under its right of subrogation the proceeds of the Davidson County judgment, to the extent to defendant’s tender, is established. For the purposes of this lawsuit no further facts are necessary to establish defendant’s right to judgment.

Plaintiff, however, strenuously argues that the judgment on the pleadings in defendant’s favor was improper because under the contract of insurance he is entitled to be paid his expense of recovery in the Davidson County case, and is entitled to be paid his expense of storage to protect the damaged automobile.

Assuming, but not deciding, that plaintiff’s policy provides such coverage, plaintiff’s complaint alleges and seeks only a recovery for physical damage to his automobile in the sum of $2,495.00, less the $100.00 deductible. Nevertheless, plaintiff contends that by his reply to defendant’s answer he asserts the right to recover for these two items of expense.

Plaintiff did not file an amended complaint, nor did he seek leave to file an amendment, to allege a cause for recovery of expense of the Davidson County litigation or the expense of storage. “The plaintiff cannot in his reply set up a cause of action different from that contained in his complaint.” McIntosh, N. C. Practice 2d, § 1265; Nix v. English, 254 N.C. 414, 119 S.E. 2d 220.

We have examined plaintiff’s remaining assignments of error and in them we find no prejudicial error.

Affirmed.

Campbell and Mourns, JJ., concur.