Gillikin v. Springle

118 S.E.2d 611 (1961) 254 N.C. 240

C. T. GILLIKIN, Administrator of Louie Elmer Gillikin, Deceased, and Next of Kin to Louie Elmer Gillikin, Deceased,
v.
Leslie D. SPRINGLE.

No. 95.

Supreme Court of North Carolina.

March 8, 1961.

Charles L. Abernethy, Jr., New Bern, for plaintiff-appellant.

Claud R. Wheatly, Jr., and Thomas S. Bennett, Beaufort, for defendant-appellee.

RODMAN, Justice.

When it affirmatively appears from the complaint that plaintiff has no right of action, this Court is not required to await a formal demurrer. It may, ex mero motu, dismiss the action. Skinner v. Empresa Transformadora, 252 N.C. 320, 113 S.E.2d 717. If there is a mere defect in the attempted statement of the cause of action, plaintiff should be permitted to amend.

The rule which is applied here may be used by the Superior Court, particularly when, as here, there is a motion for judgment on the pleadings. Speas v. Ford, 253 N.C. 770, 117 S.E.2d 784.

Giving the pleadings the liberal construction commanded by the statute, G.S. § 1-151, it appears plaintiff asserts tortious conduct by defendant to plaintiff's detriment by (1) initiating a conspiracy to suborn perjured testimony in an action to which plaintiff was a party, (2) fraud perpetrated by defendant on plaintiff by the perjured testimony, thereby preventing plaintiff from recovering for the wrongful death of his intestate, (3) defamation of plaintiff's intestate by asserting intestate was drunk and nude when he drove the automobile and by exhibiting derogatory pictures of intestate, (4) prostitution of the office of coroner to defendant's personal advantage.

Plaintiff's brief does little to enlighten us which allegation entitles him to compensatory or punitive damages as claimed. He contents himself with the statement: "This (the asserted conspiracy) reveal a rotten situation for which there should be some remedy and redress in the courts * * * There was never a full and complete adjudication in the original suit for the same was tainted with fraud due to the scheming and connivance of the Coroner in his individual and official capacity.

"We cannot know just what theory Judge Burgwyn acted on as his judgment does not specify the grounds for his ruling * * *. We feel there was error in not specifying the grounds for the ruling and we pray for a ruling of error in this case."

Manifestly a judge is not compelled to inform a litigant of the reason which leads him to make a ruling, but the appeal does compel us to examine the record to see if there is in fact error in the judgment. The brief seems to say plaintiff is entitled to recover because of (a) the asserted conspiracy to procure perjured testimony, or (b) the fraud resulting from the perjured testimony preventing his recovering damages for wrongful death.

Perjured testimony and the subornation of perjured testimony are criminal offenses, G.S. §§ 14-209, 14-210, but neither are torts supporting a civil action for damages. The right to recover based on perjury has recently been considered by us and denied. Brewer v. Carolina Coach Co., 253 N.C. 257, 116 S.E.2d 725. Nothing need be added to what was there said.

Plaintiff does not ask that the judgment of nonsuit in his action for damages for wrongful death be vacated because of asserted fraud. His prayer is for damages for the fraud. It would seem manifest that he could not recover for fraud unless and until the judgment denying him the right to recover was vacated. The fraud which he asserts is intrinsic fraud. Many decisions of this Court have declared a judgment cannot be vacated because of perjured testimony unless the party charged with perjury has been indicted and convicted or he has passed beyond the jurisdiction of courts and is not amenable to criminal process. Horne v. Edwards, 215 N.C. 622, 3 S.E.2d 1; McCoy v. Justice, 199 N.C. 602, 155 S.E. 452; Kinsland v. Adams, 172 N.C. 765, 90 S.E. 899; Moore v. Gulley, 144 N.C. 81, 56 S.E. 681, 10 L.R.A.,N.S., 242; Dyche v. Patton, 56 N.C. 332; Peagram v. King, 9 N.C. 605; 30A Am.Jur. 734. These decisions supplemented by the cases there cited are decisive.

The right to recover for alleged defamation of intestate or because of wrongful acts as coroner are discussed in Gillikin v. Bell, N.Car., 118 S.E.2d 609, and Gillikin v. United States Fidelity & Guaranty Co., N. Car., 118 S.E.2d 606, where further facts pertinent to those questions are stated.

Plaintiff's allegations show he has no cause of action.

Affirmed.