176 S.E.2d 161 (N.C. 1970), 40, Sutton v. Duke

Docket Nº:40.
Citation:176 S.E.2d 161, 277 N.C. 94
Party Name:Jimmy Ray SUTTON v. Marvin DUKE, Kinston Fertilizer Company, and Seaboard Coast Line RailroadCompany.
Case Date:August 28, 1970
Court:Supreme Court of North Carolina
 
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Page 161

176 S.E.2d 161 (N.C. 1970)

277 N.C. 94

Jimmy Ray SUTTON

v.

Marvin DUKE, Kinston Fertilizer Company, and Seaboard Coast

Line RailroadCompany.

No. 40.

Supreme Court of North Carolina.

August 28, 1970

Page 162

[Copyrighted Material Omitted]

Page 163

Lewis & Rouse, Farmville, for plaintiff appellant.

Barden, Stith, McCotter & Sugg, New Bern, Aycock, LaRoque, Allen, Cheek & Hines, Kinston, for Marvin Duke and Kinston Fertilizer Co.

Spruill, Trotter & Lane, by John R. Jolly, Jr., Rocky Mount, for Seaboard Coast Line R. Co.

SHARP, Justice.

The demurrer in this case was interposed under G.S. § 1--127(6). This section was repealed by N.C.Sess.L. ch. 954, § 4 (1967), which enacted the new North Carolina Rules of Civil Procedure (NCRCP). These rules became effective 1 January 1970 and were made applicable 'to actions and proceedings pending on that date as well as to actions and proceedings commenced on and after that date.' N.C.Sess.L. ch. 803 (1969). The decision of the Court of Appeals, which reversed the trial court's judgment sustaining the demurrer and dismissing the action, was filed 31 December 1969. Thus, this appeal was caught In limine by Rule 7(c) which says, 'Demurrers, pleas and exceptions for insufficiency shall not be used.'

When, however, a pleader has failed 'to state a claim upon which relief can be granted,' his adversary is now permitted by Rule 12(b)(6) to assert that defense either in a responsive pleading or by motion to dismiss.

N.C.R.Civ.P. 12(b) is essentially a verbatim copy of Rule 12(b) of the Federal Rules of Civil Procedure (FRCP). In 2A Moore's Federal Practice § 12.08 (2d ed. 1968) (hereinafter referred to as Moore) it is said: 'The motion to dismiss under Rule 12(b)(6) performs substantially the same function as the old common law general demurrer. A motion to dismiss is the usual and proper method of testing the legal sufficiency of the complaint. For the purpose of the motion, the well-pleaded material allegations of the complaint are taken as admitted; but conclusions of law or unwarranted deductions of fact are not admitted.' The question as to what should be done with demurrers arose immediately after the federal rules went into effect, and the cases dealing with the problem generally treated the [277 N.C. 99] demurrer as a motion to dismiss under Federal Rule 12(b) (6). 2 Moore § 7.06. 'A motion to dismiss 'for failure to state a claim upon which relief can be granted' is the modern equivalent of a demurrer. Rule 12(b), Federal Rules of Civil Procedure as amended and the Note thereto.' United Transport Service Employees, etc. v. National Mediation Board, 85 U.S.App.D.C. 352, 179 F.2d 446 (1948).

Accordingly we treat the demurrer in this case as a motion to dismiss under our Rule 12(b)(6) and consider whether plaintiff has stated in his complaint 'a claim upon which relief can be granted.' Our general directive is Rule 8(a)(1) which requires that any 'pleading which sets forth a claim for relief * * * shall contain (1) A short and plain statement of the claim Sufficiently particular to give the court and the parties notice of the transactions, ocrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief, and (2) A demand for judgment for the relief to which he deems himself entitled. * * *' (Emphasis added.) This rule replaces G.S. § 1--122 (repealed 1 January 1970), which provided that 'the complaint must contain * * * a plain and concise statement of the facts constituting a cause of action. * * *'

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The North Carolina Rules of Civil Procedure are modeled after the federal rules. 48 N.C.L.Rev. 636 (1970). In most instances they are verbatim copies with the same enumerations. Sizemore, 5 Wake Forest Intra.L.Rev. 1 (1969). However, our Rule 8(a)(1) differs from corresponding Federal Rules 8(a)(2) in that the latter requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief.' To the federal rule the legislature added the italicized portion of the preceding quotation of our Rule 8(a), and those words constitute the difference in the two rules. There are also material differences between illustrative Federal Forms 9 and 10 and North Carolina illustrative Forms 3 and 4. These forms each state a claim for damages for personal injuries resulting from a collision between an automobile and a pedestrian. North Carolina Forms 3 and 4 contain allegations of the specific acts constituting defendant's negligence. Federal Forms 9 and 10 contain no such specificity; they merely allege that at a designated time and place 'defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway.' N.C.R.Civ.P. 84 declares that Forms 3 and 4 and all the other forms of complaint incorporated therein are 'sufficient under these rules and are [277 N.C. 100] intended to indicate the simplicity and brevity of statement which the rules contemplate.' This language is identical to that of Federal Rule 84.

The italicized portion of our Rule 8(a)(1) (not included in Federal Rule 8(a) (2)) was probably taken from the New York's Civil Practice Law and Rules § 3013 (CPLR) (McKinney's Consolidated Laws of N.Y., Book 7B § 3013). See 48 N.C.L.Rev. 636, 638, n. 15. Section 3013 says: 'Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and The material elements of each cause of action or defense.' (Italics ours.) The preceding words in italics were omitted from our Rule 8(a) (1) and constitute the difference between it and New York Rule 3013.

By repealing G.S. § 1--122, which required a complaint to state 'the facts constituting a cause of action,' and substituting in lieu thereof the requirement that a 'claim for relief' shall be stated with sufficient particularity to give Notice of the events intended to be proved showing that the pleader is entitled to relief, the legislature obviously intended to change our prior law. We do not assume its choice of 'new semantics' was either accidental or casual. Considering the inspiration, origin, and legislative history of the NCRCP and the absence from it of the words 'facts' and the phrase 'facts constituting a cause of action' we conclude that the legislature intended to relax somewhat the strict requirements of detailed Fact pleading and to adopt the concept of 'notice pleading.' However, the additional requirements in our Rule 8(a)(1) manifest the legislative intent to require a more specific statement, or notice in more detail, than Federal Rule 8(a)(2) requires.

In 5 Wake Forest Intra.L.Rev. 1, 15, Professor James E. Sizemore says that...

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