Stone v. Carolina Coach Co.

78 S.E.2d 605 (1953) 238 N.C. 662

STONE
v.
CAROLINA COACH CO.

No. 456.

Supreme Court of North Carolina.

November 25, 1953.

R. Mayne Albright, Raleigh, for plaintiff appellee.

Smith, Leach, Anderson & Dorsett, Raleigh, for defendant appellant.

BARNHILL, Justice.

While a plaintiff may not demur to specific paragraphs of an answer, he may demur to a further defense as a whole. Duke v. Campbell, 233 N.C. 262, 63 S.E.2d 555; Cody v. Hovey, 216 N.C. 391, 5 S.E.2d 165. Likewise he may move to strike specific paragraphs in the answer. Here the plaintiff took no chances. He demurred to the further defense and also moved to strike the specific paragraphs in which that defense is pleaded.

A demurrer or motion to strike admits, for the purpose of the hearing thereon, the truth of the allegations so challenged. When the demurrer or motion is, as here, directed to the sufficiency of a pleaded defense, the one question presented to the judge for decision is as to whether the facts alleged constitute a valid defense, in whole or in part, to plaintiff's cause of action. The judge is not permitted to hear evidence or find facts dehors the record. He must accept the facts as alleged and bottom his answer thereon.

This defendant was the employer of Parker who was about his master's business at the time of the collision. It is liable to plaintiff, if at all, under the doctrine of respondeat superior. A judgment which constitutes a release of Parker from further liability to plaintiff likewise releases this defendant, for it is legally liable only for damages proximately resulting from his negligence. Leary v. Virginia Carolina Joint Stock Land Bank, 215 N.C. 501, 2 S.E.2d 570; Whitehurst v. Elks, 212 N.C. 97, 192 S.E. 850.

The pleaded judgment is regular upon its face. It was entered by a court of competent jurisdiction in a case in which this plaintiff was the defendant, and want of jurisdiction of the person is not suggested. So long as it remains of record, it constitutes a complete bar to plaintiff's right to recover in this cause. Snyder v. Kenan Oil Co., 235 N.C. 119, 68 S.E.2d 805; Lumberton Coach Co. v. Stone, 235 N.C. 619, 70 S.E.2d 673; Herring v. Queen City Coach Co., 234 N.C. 51, 65 S.E.2d 505.

It cannot be collaterally attacked as here attempted. Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26; Williams v. Trammell, 230 N.C. 575, 55 S.E.2d 81; Hall v. Shippers Express, 234 N.C. 38, 65 S.E.2d 333; Collins v. North Carolina State Highway & Public Works Commission, 237 N.C. 277, 74 S.E.2d 709. If plaintiff wishes to proceed further in this cause, he must first have the Parker judgment vacated by independent action or motion in the cause, as he may be advised. It is not proper for us at this time to express an opinion as to which is the appropriate remedy.

The court below erred in finding facts on which, in part at least, it based its judgment. It likewise erred in sustaining the demurrer and motion to strike. Therefore, the judgment entered in the court below must be

Reversed.