Brewer v. Harris

• Decision Date: 30 July 1971
• Docket Number: No. 102,102
• Citation: 279 N.C. 288,182 S.E.2d 345
• Parties: Kenneth W. BREWER, Administrator of the Estate of Farrell L. Brewer, Plaintiff, v. William P. HARRIS, Administrator of the Estate of Gary Rudisill, Defendant.
• Court: North Carolina Supreme Court

Page 345

182 S.E.2d 345

279 N.C. 288

Kenneth W. BREWER, Administrator of the Estate of Farrell L Brewer, Plaintiff, v. William P. HARRIS, Administrator of the Estate of Gary Rudisill, Defendant.

No. 102.

Supreme Court of North Carolina.

July 30, 1971.

John Haworth, Haworth, Riggs, Kuhn & Haworth, High Point, for plaintiff appellee.

Perry C. Henson and Daniel W. Donahue, Greensboro, for defendant appellant.

BRANCH, Justice.

Defendant appellant contends that the Court of Appeals erred in holding that the complaint was sufficient to raise an issue as to whether the conduct of defendant's intestate was wilful and wanton.

Plaintiff by his complaint, Inter alia, alleged:

VII. Said collision occurred in the following manner and not otherwise:

Gary Gene Rudisill was driving said 1968 Chevrolet Corvette automobile in a northerly direction along South Main Street. Before stopping at the intersection of South Main Street and Fairfield Road, where the electrical traffic signal was then displaying a red light for traffic on South Main Street, Gary Gene Rudisill had been driving at a lawful and reasonable rate of speed and in a normal, careful and prudent manner. When the traffic signal at the intersection of South Main Street and Fairfield Road turned green for traffic on South Main Street, Gary Gene Rudisill resumed traveling in a northerly direction along South Main Street but suddenly accelerated the speed of said automobile and began traveling at a highly dangerous and unsafe rate of speed and in an extremely careless and reckless manner. Despite the protests of the occupants of said automobile, including the protests of Farrell L. Brewer, Gary Gene Rudisill, continued to drive at an extremely high and dangerous rate of speed and lost control of said automobile as it entered the curve at the intersection of Fraley Road and South Main Street. Said automobile went off the west side of the road, struck two utility poles and struck head-on a 1967 Pontiac qutomobile being operated by James Daniel Miller. Said 1968 Chevrolet Corvette automobile was totally demolished and its occupants, including Farrell L. Brewer, were thrown from the vehicle. Farrell L. Brewer thereby sustained severe and critical injuries from which he died at about two o'clock A.M. on September 15, 1968.

VIII. The injuries sustained by Farrell L. Brewer and his death were solely and proximately caused by the negligence of Gary Gene Rudisill. Specifically Gary Gene Rudisill was negligent in the following respects:

(a) He drove said 1968 Chevrolet Corvette automobile upon a public highway carelessly and heedlessly, in willful and wanton disregard of the rights and safety of Farrell L. Brewer and others, without due caution and circumspection, and at a speed and in such a manner as to endanger the person and property of Farrell L. Brewer and others, thereby violating the provisions of G.S. § 20--140.

(b) He drove said 1968 Chevrolet Corvette automobile at a speed greater than was reasonable and prudent under conditions then existing, thereby violating the provisions of G.S. § 20--141(a).

(c) He drove said 1968 Chevrolet Corvette automobile at a speed greatly in excess of the maximum posted speed limit of thirty-five (35) miles per hour then and there prevailing.

(d) He failed to decrease the speed of said 1968 Chevrolet Corvette automobile where special hazard existed by reason of highway and traffic conditions so as to avoid said collision in accordance with his duty to exercise due care, thereby violating the provisions of G.S. § 20--141(c).

(e) He failed to keep and maintain said 1968 Chevrolet Corvette automobile under careful and proper control in violation of his legal duty to exercise due care.

(f) He failed to drive said 1968 Chevrolet Corvette automobile upon the right half of the roadway, thereby violating the provisions of § 20--146(a).

(g) While meeting a vehicle proceeding in the opposite direction he failed to pass said vehicle to the right and give to the other vehicle at least one-half of the main traveled portion of the roadway as nearly as possible, thereby violating the provisions of G.S. § 20--148. (Emphasis added.)

The effective date of the Rules of Civil Procedure contained in Chapter 1A of the General Statutes was 1 January 1970, and the Rules apply to actions and proceedings pending on that date as well as to actions and proceedings commenced on and after that date. Session Laws of 1969, Ch. 803, § 10; Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161.

This case was tried on 18 May 1970 and is therefore governed by the 'New Rules.' G.S. § 1A--1, Rule 8 provides:

'(a) Claims for relief.--A pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim, shall contain

(1) A short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief, * * *'

In Sutton v. Duke, supra, this Court considered the effect of this rule and, speaking through Sharp, J., stated:

'* * * (S)ince the federal and, presumably, the New York rules are the source of NCRCP we will look to the decisions of the jurisdictions for enlightenment and guidance as we develop 'the philosophy of the new rules.'

'The attempts of the federal court to state the scope and philosophy of their rules was summarized by Mister Justice Black in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80, the case most frequently cited and quoted on the point we consider here. Speaking for a unanimous Court, he said: '* * * (T)he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is a 'short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. The illustrative forms appended to the Rules plainly demonstrate this. Such simplified 'notice pleading' is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues.' Id. at 47--48, 78 S.Ct. at 103. Thus, under the federal rules 'a case consists not in the pleadings, but in the evidence, for which the pleadings furnish the basis.' De Loach v. Crowley's Inc., 128 F.2d 378 (5th Cir. 1941).

'Under the 'notice theory of pleading' a statement of claim is adequate if it gives sufficient notice of the claim asserted 'to enable the adverse party to answer and prepare for trial, to allow for the application of the doctrine of Res judicata, and to show the type of case brought. * * *' * * *'

We find further aid in interpreting these Rules by reference to the illustrative forms approved by the legislature in G.S. § 1A--1, Rule 84, where we find the following:

'The following forms are sufficient under these rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate:

(4) Complaint for Negligence. (Where plaintiff is unable to determine definitely whether one or the other of two persons is responsible or whether both are responsible and where his evidence may justify a finding of wilfulness or of recklessness or of negligence.)

1. On_ _19_ _, at_ _, defendant X or defendant Y, or both defendants X and Y, wilfully or recklessly or negligently drove or caused to be driven a motor vehicle against plaintiff who was then crossing said street.

2. Defendant X or defendant Y, or both defendants X and Y were negligent in that:

(a) Either defendant or both defendants drove at an excessive speed.

(b) Either defendant or both defendants drove through a red light.

(c) Either defendant or both defendants failed to yield the right-of-way to plaintiff in a marked crosswalk.

3. As a result plaintiff was thrown down and had his leg broken and was otherwise injured, was prevented from transacting his business, suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization (in the sum of one thousand dollars) (or) (in an amount not yet determined).

Wherefore, plaintiff demands judgment against X or against Y or against both in the sum of_ _dollars and costs.

This form approves a short statement of the basic occurrences and the use of the words 'reckless' and 'wilful' to describe the character of a defendant's conduct as sufficient notice of the claim 'to enable the adverse party to answer and prepare for trial, to allow for the application of the doctrine of Res judicata, and to show the type of case brought. * * *'

Certainly the detailed factual allegations and the description of the character of defendant's intestate's alleged conduct in instant case meets the requirement of 'notice theory of pleading.' Our conclusion that this complaint gave defendant fair notice of the nature of plaintiff's claim and the grounds upon which it rested draws strength from the fact that defendant's answer alleges 'wilful and wanton' conduct on the part of Brewer in pleading contributory negligence.

We hold that plaintiff's complaint was sufficient to raise the issue of defendant's intestate's wilful and wanton conduct.

Appellant contends that plaintiff failed to allege wilful and wanton conduct within the provisions of N.C.G.S. § 1A--1 Rule 9(b) stating that conditions of mind May be generally averred. Since we hold that the complaint meets the requirements of G.S. § 1A--1, Rule 84, Form 4, we find no merit in this contention.

We next consider appellant's contention that the evidence was not sufficient to require submission of an issue as to the wilful and wanton conduct of defendant's intestate.

The evidence pertinent to decision of this question may be summarized as follows:

Brewer...