Copple v. Warner, 738
| Decision Date | 19 December 1963 |
| Docket Number | No. 738,738 |
| Citation | 133 S.E.2d 641,260 N.C. 727 |
| Parties | Mittie Mae COPPLE v. Duncan Taimadge WARNER, Jr. and Jerry Wayne West. |
| Court | North Carolina Supreme Court |
Harold T.Dodge, Burlington, for plaintiff appellant.
Sanders & Holt, Burlington, for defendant appellee Warner.
Thomas D. Cooper, Burlington, for defendant appellee West.
We consider first the demurrer of Warner.
Plaintiff alleges her injuries were proximately caused by the second collision, that is, when the West car collided with the Copple and Warner cars. Whether there is a misjoinder of parties and causes of action depends upon legal principles stated in Batts v. Faggart, ante, N.C., 133 S.E.2d 504, and cases cited. If, as defendant Warner asserts, the complaint does not allege facts sufficient to constitute a cause of action against him, there is no misjoinder of parties and causes of action.
A cause of action consists of the facts alleged in the complaint. G.S. § 1-122 (2); Lassiter v. Norfolk & C. R. Co., 136 N.C. 89, 48 S.E. 642; Stamey v. Rutherfordton Electric Membership Corp., 249 N.C. 90, 94, 105 S.E.2d 282. The facts alleged, but not the pleader's legal conclusions, are deemed admitted where the sufficiency of a complaint is tested by demurrer. Skipper v. Cheatham, 249 N.C. 706, 710, 107 S.E.2d 625.
The crucial question is whether, upon the facts alleged, the alleged negligence of Warner, conceding Warner's negligence proximately caused the first collision, may be considered a (concurring) proximate cause of the second collision.
While plaintiff alleged the second collision occurred 'almost immediately following' the first collision, there was sufficient time between the first and second collisions according to plaintiff's allegations for Copple to get out of his car and engage in an attempt to pull loose the fenders of the Copple and Warner cars. The only reasonable inference to be drawn from plaintiff's allegations is that the Copple and Warner cars had collided and were at a standstill before West was in close proximity to said intersection.
Plaintiff does not allege the (right) lane for westbound travel on No. 62 was in any manner or to any extent blocked by the Copple car, the Warner car or otherwise. She alleges West traveling west on No. 62 did not yield at least one-half of the main traveled portion of the highway but negligently and wrongfully drove his car across the center line of No. 62 and there collided with the Copple and Warner cars.
In our view, plaintiff's factual allegations are insufficient to show that negligence on the part of Warner in proximately causing the first collision was a (concurring) proximate cause of the second collision. The presence of the Copple and Warner cars in the (right) lane...
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...686 (Tex.Civ.App.1967) applies the 'remote cause' or 'condition' concept which is contrary to New Mexico law. In Copple v. Warner, 260 N.C. 727, 133 S.E.2d 641 (1963), the first collision between cars A and B, was caused by car B. This collision blocked the eastbound lane of the highway. Ca......
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