Benton v. W. H. Weaver Const. Co., 7510SC682
Citation | 28 N.C.App. 91,220 S.E.2d 417 |
Decision Date | 17 December 1975 |
Docket Number | No. 7510SC682,7510SC682 |
Parties | Anthony Paul BENTON v. W. H. WEAVER CONSTRUCTION COMPANY. |
Court | North Carolina Court of Appeals |
Blanchard, Tucker, Twiggs & Denson by Charles F. Blanchard and Charles A. Parlato, Raleigh, for plaintiff appellant.
Smith, Anderson, Blount & Mitchell by John L. Jernigan, Raleigh, for defendant appellee.
Both the plaintiff and the defendant have argued in their briefs the question of whether the plaintiff can recover in this action for damages for personal injury against this defendant on the theory that the defendant breached its contract with the State of North Carolina to provide certain safety measures in the construction of the Bath Building, without regard to negligence. Neither party, however, seems to have given consideration to the question of whether plaintiff's complaint, when liberally construed, states a claim upon which relief can be granted.
2A Moore, Federal Practice § 12.08 (1975). Accord, Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). In Sutton v. Duke, Justice Sharp, now Chief Justice, wrote:
Id. at 102, 176 S.E.2d at 165.
Any construction of the complaint in this cause reveals that plaintiff's Claim is for damages for personal injuries allegedly resulting from his fall through an unguarded elevator shaft on a building under construction wherein the defendant was the general contractor. In determining the sufficiency of a complaint to state a claim upon which relief can be granted when challenged by a 12(b)(6) motion, the federal courts have consistently held that the legal theory upon which a claim may be bottomed does not determine the validity of a claim; and particular legal theories of counsel yield to the court's duty to grant the relief to which the prevailing party is entitled, whether demanded or not. See, Thompson v. Allstate Insurance Company, 476 F.2d 746 (5th Cir. 1973); New Amsterdam Casualty Company v. Waller, 323 F.2d 20 (4th Cir. 1963), Cert. denied, 376 U.S. 963, 84 S.Ct. 1124, 11 L.Ed.2d 981 (1964); United States v. Martin, 267 F.2d 764 (10th Cir. 1959); Dotschay v. National Mutual Insurance Company, 246 F.2d 221 (5th Cir. 1957); Gins v. Mauser Plumbing Supply Co., 148 F.2d 974 (2d Cir. 1945).
Our concern, therefore, is not whether the complaint states a claim upon which relief can be granted on a theory of breach of contract, but rather whether the complaint when liberally construed states a claim for this plaintiff in this case against this defendant upon which relief can be granted on any theory.
It is well settled in North Carolina that where a contract between two parties is intended for the benefit of a third part...
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...S.E.2d 161 (1970). In testing the sufficiency of the claim, the complaint must be liberally construed, Benton v. W. H. Weaver Construction Co., 28 N.C.App. 91, 220 S.E.2d 417 (1975), and when the allegations give sufficient notice of the wrong of which plaintiff complains, the incorrect cho......
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