Gordon v. State Farm Mutual Automobile Insurance

Campbell, J.

We are concerned solely with the complaint as finally amended which was before Judge Thornburg on 20 May 1969. This complaint does not contain “[a] plain and concise statement of facts constituting a cause of action, without unnecessary repetition.” G.S. 1-122. To the contrary, this complaint presents a jumble of words, and we find it impossible to determine just exactly what cause of action the plaintiff is attempting to set out.

For instance, paragraph 12 of the amended complaint attempts to allege in substance that the 1953 Oldsmobile automobile in question was insured by defendant because:

A. It was an “owned automobile” within the meaning of the alleged policy; “and/or”

B. It was a “non-owned automobile” within the meaning of the alleged policy; “and/or”

C. It was an automobile which was to be substituted for the automobile described in the alleged policy “and/or” a temporary substitute automobile “and/or”

D. An automobile designated in the alleged policy by explicit description as the motor vehicle with respect to which the coverage of the alleged policy was to be granted as required bjr law.

“We do not look with favor upon the ambiguous and uncertain term 'and/or.’ ” Thomas & Howard Co. v. Insurance Co., 241 N.C. 109, 84 S.E. 2d 337. The use of this ambiguous and uncertain term in the instant case compounds the confusion as to exactly on what basis the plaintiff desires to rest his cause of action.

The pleadings must raise the precise issues which are to be submitted to the jury so that the court itself may not be left in a quandary as to the cause of action it is trying. Likewise the complaint should be worded so that the defendant will not be left in doubt as to how to answer and what defense, if any, to make. The plaintiff should do more than merely incorporate in his pleading allegations in the nature of legal conclusions. He should show that the loss sued for was covered by the contract of insurance, and ordinarily he should set out facts sufficient to enable the court to decide that his claim is included within the coverage of the policy or contract. Brevard v. Insurance Co., 262 N.C. 458, 137 S.E. 2d 837.

In our opinion the ruling of Judge Thornburg should be sustained.

Affirmed.

PARKER and Graham, JJ., concur.