McLaney v. Anchor Motor Freight, Inc. , 236 N.C. 714 ( 1953 )

74 S.E.2d 36 (1953) 236 N.C. 714

McLANEY
v.
ANCHOR MOTOR FREIGHT, Inc., OF DELAWARE et al.

No. 666.

Supreme Court of North Carolina.

January 6, 1953.

H. H. Clark and Edward B. Clark, Elizabethtown, for plaintiff appellee.

A. J. Fletcher and F. T. Dupree, Jr., Raleigh, for defendant Anchor Motor Freight, Inc., appellant.

WINBORNE, Justice.

The demurrer of the appellant, Anchor Motor Freight, Inc., presents the question as to whether or not the facts alleged in the complaint of plaintiff are sufficient to constitute a cause of action against them. For this purpose the truth of the allegations contained therein are admitted, and "ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted, but the principle does not extend to the admissions of conclusions or inferences of law", Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761, 763. See also Bumgardner v. Fence Company, N.C., 74 S.E.2d 32, and cases there 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 a 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 there cited.

In the light of the provisions of the statute, as so interpreted and applied, admitting the truth of the facts alleged in the complaint, this Court is constrained to conclude as a matter of law that the allegations in respect of this defendant, the appellant Anchor Motor Freight, Inc., are fatally defective upon the ground on which the demurrer is predicated, that is, 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 George McLaney, Jr. See Murray v. Atlantic Coast Line R. Co., 218 N. C. 392, 11 S.E.2d 326; also Harton v. Forest City Telephone Co., 141 N.C. 455, 54 S.E. 299; Ballinger v. Thomas, supra; Boyd v. Seaboard Air Line Ry. Co., 200 N.C. 324, 156 S.E. 507; Hinnant v. Atlantic Coast Line R. Co., 202 N.C. 489, 163 S.E. 555; Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88; Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808; Chinnis v. Atlantic Coast Line R. Co., 219 N. C. 528, 14 S.E.2d 500; Warner v. Lazarus, 229 N.C. 27, 47 S.E.2d 496; Mintz v. Town of Murphy, 235 N.C. 304, 69 S.E.2d 849; Clark v. Lambreth, 235 N.C. 578, 70 S.E.2d 828; Godwin v. Nixon, N.C., 74 S.E.2d 24.

The factual situation here is so strikingly similar to that in Murray v. Atlantic Coast Line R. Co., supra, as it related to conduct of defendant Elliott, in operation of her automobile, that the question of law here presented might fairly be decided on the authority of that case. There the driver of the car which was being overtaken by defendant Elliott, saw the obstruction in the highway, created by defendant railroad in repairing a grade crossing, slowed down, turned to the left and passed in safety and without injuring anyone. But as she put on speed to pass, the car turned left to by-pass the obstruction and, as she said, she "had nowhere to go but to hit the obstruction or the other car". [218 N.C. 392, 11 S.E.2d 335.] She did the former, and plaintiff, a workman engaged in the repair work, was injured. The Court speaking thereto, held that the "evidence points unerringly to the conclusion that this situation was created by her failure to exercise ordinary care and to observe the law of the road in the operation of her automobile, and that the injury to plaintiff was proximately caused thereby, independent of any act or omission of duty upon the part of the defendant Railroad Company", citing Boyd v. Seaboard Air Line Ry. Co., supra; Powers v. Sternberg, supra, Butner v. Spease, supra, where the subject of intervening negligence had been recently treated and applied.

Hence, we hold that the demurrer here is well founded, and should be sustained. Therefore the judgment below is

Reversed.

PARKER, J., took no part in the consideration or decision of this case.