Wilkes Poultry Co. v. Clark Trailer & Equipment Co. , 247 N.C. 570 ( 1958 )

101 S.E.2d 458 (1958) 247 N.C. 570

WILKES POULTRY COMPANY, Inc.
v.
CLARK TRAILER AND EQUIPMENT COMPANY, Inc.

No. 396.

Supreme Court of North Carolina.

January 10, 1958.

W. H. McElwee, W. L. Osteen, Larry S. Moore, North Wilkesboro, for plaintiff-appellant.

Trivette, Holshouser & Mitchell, North Wilkesboro, for defendant-appellee.

DENNY, Justice.

Plaintiff does not allege in its complaint that the defendant agreed to recondition the trailer and put it in first class condition, but on the contrary it alleges that the "defendant by its act represented that such work had been safely and securely done." It does allege defective and negligent workmanship on the part of the defendant in connection with the welding of the pintle plate to the frame of the trailer, but there is no evidence tending to show that such welding was done by the defendant. In fact, the plaintiff's evidence tends to show to the contrary. The plaintiff's expert witness made a drawing of the pintle plate on a blackboard and described the condition of the plate when he examined it immediately after the accident. He testified that the back of the pintle plate had not "been welded for some time * * * I mean on the back side of this plate in this area right here, it had not been welded * * * had been loose for some time * * * There were also marks of broken weld in this zone that were very extensively rusted, far more rusted than the welds on the other part; so we can assume that these were broken for a considerable length of time; my opinion is that they had been broken from some time." In support of his opinion in this respect, he further testified, "It is my opinion that an inspection of the trailer and the pintle plate by the defendant or one of its employees on May 17, 1956, would have disclosed the lack of weld on the back side of the pintle plate and the fact that the weld along the right and left sides and across the front was of intermittent character with gaps."

As we construe the allegations of the complaint, the plaintiff bottoms his cause of action on the negligent and defective manner in which the defendant undertook to weld the pintle plate to the frame of the trailer. On the other hand, the plaintiff offered evidence tending to show that the defendant never attempted to weld the pintle plate to the frame of the trailer at all, but that the defective condition of the pintle plate existed at the time the defendant reconditioned the trailer, and such condition, upon a proper inspection, could have and would have been discovered. Such evidence tends to support the contention of the plaintiff that the defendant failed to recondition the trailer and put it in first class condition. However, the cause of action pleaded is not based on a breach of contract to recondition the trailer and to put it in first class condition. 46 Am. Jur., Section 327, page 507, et seq.

In Talley v. Harriss Granite Quarries Co., 174 N.C. 445, 93 S.E. 995, 996, this Court said: "It has so often been said, as to have grown into an axiom, that proof without allegation is as unavailing as allegation without proof. There must, under the old or new system of pleading, be allegata and probata, and the two must correspond with each other. When the proof materially departs from the allegation, there can be no recovery without an amendment. McKee v. Lineberger, 69 N.C. 217; Brittain v. Daniels, 94 N.C. 781; Faulk v. Thornton, 108 N.C. 314, 12 S.E. 998; Pendleton v. Dalton, 96 N.C. 507, 2 S.E. 759; Hunt v. Vanderbilt, 115 N.C. 559, 20 S.E. 168; Green v. Biggs, 167 N.C. 417, 83 S.E. 553. It was never intended, even by our liberal code system, that a plaintiff should be allowed to prove a cause of action which he has not alleged." See also McIntosh, North Carolina Practice and Procedure (2nd Ed.), Volume 1, page 522, section 981; Sale v. State Highway & Public Works Commission, 238 N.C. 599, 78 S.E.2d 724; Aiken v. Sanderford, 236 N.C. 760, 73 S.E.2d 911; Whichard v. Lipe, 221 N.C. 53, 19 S.E.2d 14, 139 A.L.R. 1147.

In our opinion, in light of the pleadings as now cast and the evidence adduced in the trial below, there is a fatal variance between the pleadings and the proof. Hence, the ruling of the court below is

Affirmed.