Sanderson v. Ætna Life Insurance

Seawell, J.

1. Defendant’s appeal from the order continuing its motion to dismiss is premature, since the order disposes of no substantial right. O. S., 638. Moreover, the defendant cannot be hurt by the mere continuance of a motion in which it cannot hope to prevail.

In its motion to dismiss plaintiff’s action the defendant merely attempts to assert the conclusiveness of prior judgments supposedly affecting the matters in controversy. Res judicata is an affirmative plea in bar which must be taken by answer and supported by competent evidence. When properly raised, the issue will be determined according to the practice of the Court, but the defense is not available on a motion to dismiss. Williams v. Hutton & Bourbonnais Co., 164 N. C., 216, 80 S. E., 257; Redmond v. Coffin, 17 N. C., 437; Bear v. Comrs. of Brunswick County, 124 N. C., 204, 32 S. E., 558. There was no error in continuing this motion.

2. The demurrer points out a variance or discrepancy in the complaint as to the time when plaintiff’s total permanent disability began. In paragraph 7 it is alleged to have begun on or about the first day of January, 1938. In the proof of claim set out in paragraph 7A of the amended complaint it is stated to have begun 12 January, 1935.

The discrepancy is not sufficient to defeat recovery and, therefore, not fatal to the complaint. It is sufficient if the total permanent disability, of which notice is alleged, has existed for such a period of time as will entitle the plaintiff to some benefits under the contract of insurance.

Untenable, also, are the other stated grounds of demurrer.

The judgment is

Affirmed.