Mendenhall v. Carolina Garage, Inc.

166 S.E.2d 513 (1969) 4 N.C. App. 226

Bobby Allen MENDENHALL, Original Plaintiff and American Mutual Liability Insurance Company, Additional Plaintiff,
v.
CAROLINA GARAGE, INC., Original Defendant, and
Mack Trucks, Inc., and General Tire & Rubber Company, Additional Defendants.

No. 6923SC93.

Court of Appeals of North Carolina.

April 2, 1969.

Hudson, Petree, Stockton, Stockton & Robinson, by Norwood Robinson and Thomas E. Capps, Winston-Salem, for original defendant Carolina Garage, Inc., appellant.

Womble, Carlyle, Sandridge & Rice, by Allan R. Gitter and Jimmy H. Barnhill, Winston-Salem, for additional defendant Mack Trucks, Inc., Appellee.

Smith, Moore, Smith, Schell & Hunter, by Beverly C. Moore and Larry Sitton, Greensboro, for additional defendant General Tire and Rubber Co., appellee.

CAMPBELL, Judge.

Garage asserted that it was necessary to discuss both negligence and implied warranty because of ambiguity in the complaint, which, it was argued, alleged both causes of action. Therefore, much of its excellent brief was devoted to a tort theory and the doctrine of active and passive negligence. However, the complaint is based upon an implied warranty under a contractual doctrine and not upon an action in tort.

It is also to be noted that since this action was instituted on 27 October 1967, we are concerned with the law as it existed at that time and not with statutes regarding procedure which have become effective subsequent thereto and which pertain to litigation commenced after the instant case.

On this appeal we are concerned with Garage's answer and cross-action against Mack and General.

"In determining the effects of its allegations, G.S. 1-151 requires ``for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties.' Defendants' demurrer admits, for the purpose of testing the sufficiency of the pleadings, the truth of factual averments well stated and all relevant inferences of fact reasonably deducible therefrom. It admits facts stated on information and belief as well as facts alleged on personal knowledge. * * * A demurrer does not admit inferences or conclusions of law. * * * A complaint must be fatally and wholly defective before it will be rejected as insufficient." Corprew v. Geigy Chemical Corp., 271 N.C. 485, 157 S.E.2d 98.

Construing this cross-action liberally with a view to substantial justice between the parties, it is manifest that the cross-action does not allege facts sufficient to constitute a cause of action for liability based upon breach of warranty.

In Davis v. Radford, 233 N.C. 283, 63 S.E.2d 822, 24 A.L.R. 2d 906, the original defendant specifically alleged that "* * he had purchased the patented bottled product known as Westsal, a salt substitute, from [the additional defendant], wholesale druggists in Asheville handling this product, with implied warranty that it was suitable for human consumption and manufactured and sold in compliance with the laws * * * and that [the additional defendant] was primarily liable for any damages plaintiff might recover from [the original defendant] * * *." In the instant case the cross-action alleged that in November 1964 Garage purchased from Mack the tractor in question, which was equipped with General Jet Cargo tires, as ordered by Mendenhall, and that the tires were manufactured by General. In Paragraph IV of the further answer and cross-action, Garage alleged that "[t]he original defendant did nothing to alter the condition of the tires or their mounting on the tractor from the condition that they were in when received from the additional defendant." In Paragraph V it was further alleged that:

"The plaintiff alleges that the left front tire of said tractor * * * was defective in that adhesion between the tread and the carcass on the shoulder opposite the serial number was defective; and that said defect caused the tread to separate from the carcass, causing the carcass to become overheated and to fail, resulting in an accident and damage to the 1965 Mack tractor. The plaintiff alleges a breach of duty on the part of the original defendant delivering the 1965 Mack tractor to the plaintiff with a defective tire which allegedly was not reasonably fit for the purpose for which it was intended to be used."

Garage then alleged in separate paragraphs that General and Mack were primarily responsible for any damage resulting from the defect and that they were "* * * obligated to indemnify the original defendant for any amount which the original defendant may become obligated to pay to the plaintiff by virtue of damage resulting from said defect." However, Garage has not alleged a sale of the tire by either additional defendant with an implied warranty or a warranty of any kind. In its cross-action Garage has failed to allege any facts constituting a cause of action. At most, it has alleged a conclusion of law without supporting or substantiating facts.

We are not confronted with and do not decide the question of whether the lack of privity would have been a bar to the cross-action had the implied warranty been properly pleaded.

It is noted that the order of Judge Collier under date of 20 November 1968 sustained the written demurrer of Mack and the demurrer ore tenus of General but did not dismiss the action. In so doing, the trial judge acted properly.

Affirmed.

BROCK and MORRIS, JJ., concur.