Sorrell v. Moore , 251 N.C. 852 ( 1960 )

112 S.E.2d 254 (1960) 251 N.C. 852

Gerolene Smith SORRELL, Administratrix of Estate of Floyd Thomas Sorrell, Deceased,
v.
Jo Ann MOORE, Administratrix of Estate of George W. Moore, Deceased.

No. 522.

Supreme Court of North Carolina.

January 29, 1960.

Wilson & Johnson and Edgar R. Bain, Lillington, for plaintiff-appellee.

Ruark, Young, Moore & Henderson and J. Allen Adams, Raleigh, for defendant-appellant.

RODMAN, Justice.

The motion to strike is based on the assertion that the portions objected to are mere conclusions and not statements of facts; that the first quoted portion is insufficient to constitute a defense or a cause of action, and that the last two are mere conclusions "totally incapable of proof under the facts as alleged in the complaint."

The function of a pleading is to inform an adversary what facts are claimed to constitute the cause of action, G.S. § 1-122, or defense, G.S. § 1-135. If the complaint or answer gives notice of the facts asserted for the cause of action or defense, it has served its purpose. A party is not permitted to show facts constituting a cause of action or defense which he has not pleaded.

How a fact may be established and whether the evidence offered is sufficient are evidentiary questions, for the court on competency, and for the jury on credibility.

The court cannot act on evidentiary questions until the evidence is offered. It has no right to assume that a party will not be able to prove a fact alleged. It follows that facts pleaded should not be stricken upon an assertion that they are incapable of proof.

The two portions of the answer last quoted allege facts. Defendant may or may not be able to establish the facts alleged. She should not be deprived of the right to offer competent evidence for that purpose. Weant v. McCanless, 235 N.C. 384, 70 S.E.2d 196; Williams v. Thompson, 227 N.C. 166, 41 S.E.2d 359.

The portion of the answer first quoted alleges both facts and a legal result. It alleges, when considered in connection with the remainder of the answer, that plaintiff's intestate was the owner of the car, defendant's intestate was operating it with the assent of and for the owner, the car was being driven at an unlawful rate of speed and without due care and circumspection, with at least the implied approval of the owner then present. It alleges the driver's negligence would be imputed to the owner.

A driver's negligence is not imputed to an owner-occupant of an automobile, as that word is ordinarily used in the law of negligence, meaning responsible for or chargeable with, when the owner-occupant sues the driver for injuries resulting from the driver's negligence. The negligence of a driver acting for the owner and in the scope of his authority is of course imputed to the owner in actions between the owner and parties other than driver.

While an owner-occupant is not chargeable with the negligence of the driver so as to prevent the owner from recovering from the driver for the driver's negligence, the owner-occupant, like any other person, must take reasonable precautions to protect himself from injury. What is reasonable care depends on existing conditions. An owner ordinarily has the duty and ability to control and direct the manner in which his vehicle is to be operated. He cannot sit placidly by and, when injured by the negligent operation, escape the consequences of his lack of due care.

The distinction between "imputed negligence" and contributory negligence has been recognized by us. Contributory negligence is a bar when established. Tew v. Runnels, 249 N.C. 1, 105 S.E.2d 108; Dosher v. Hunt, 243 N.C. 247, 90 S.E.2d 374; Rollison v. Hicks, 233 N.C. 99, 63 S.E.2d 190; Harper v. Harper, 225 N.C. 260, 34 S.E.2d 185; Bogen v. Bogen, 220 N.C. 648, 18 S.E.2d 162; Litaker v. Bost, 247 N.C. 298, 101 S.E.2d 31; O'Brien v. Woldson, 149 Wash. 192, 270 P. 304, 62 A.L.R. 436; Campbell v. Campbell, 104 Vt. 468, 162 A. 379, 85 A.L.R. 626; 5 Am.Jur. 769.

The allegations are not sufficient to impute or hold plaintiff responsible for the driver's negligence. They are, however, sufficient to charge the owner with the power and right to exercise control, a failure to act, and knowledge of the probability of injury from the negligent operation. These facts, if established, would constitute contributory negligence and thereby bar recovery. It was necessary to allege the facts to have the right to offer the evidence. It follows that the court erred in allowing the motion.

Reversed.