Council v. Dickerson's, Inc.
| Decision Date | 18 April 1951 |
| Docket Number | No. 451,451 |
| Citation | 64 S.E.2d 551,233 N.C. 472 |
| Court | North Carolina Supreme Court |
| Parties | COUNCIL, v. DICKERSON'S, Inc. |
Simms & Simms and John M. Simms, Raleigh, for plaintiff, appellee.
Bickett & Banks, Raleigh, for defendant, appellant.
Motions to strike out separate parts of pleadings are sanctioned by this provision of the Code of Civil Procedure: 'If irrelevant or redundant matter is inserted in a pleading, it may be stricken out on motion of any person aggrieved thereby, but this motion must be made before answer or demurrer, or before an extension of time to plead is granted. ' G.S. § 1-153.
Matter in a pleading is irrelevant within the purview of the statute if it has no substantial relation to the controversy between the parties in the particular action. Howell v. Ferguson, 87 N.C. 113.
No occasion arises in the instant case for us to express any opinion as to whether the plaintiff can sue the defendant for breach of its contract with the State Highway and Public Works Commission. This is so for the very simple reason that the plaintiff sues for a tort and bases her action upon the complaint that she suffered personal injury and property damage as the proximate consequence of the negligence of the defendant in pursuing an affirmative course of conduct, i. e., paving a highway.
Although the plaintiff sues in tort and not in contract, the contract between the defendant and the State Highway and Public Works Commission created the state of things which furnished the occasion for the tort for reasons stated below. Jackson v. Control Torpedo Co., 117 Okl. 245, 246 P. 426, 46 A.L.R. 338.
The law imposes upon every person who enters upon an active course of conduct the positive duty to exercise ordinary care to protect others from harm, and calls a violation of that duty negligence. It is immaterial whether the person acts in his own behalf or under a contract with another. Prosser on Torts, section 33.
When the defendant undertook to perform the promised work under his contract with the State Highway and Public Works Commission, the positive legal duty devolved upon him to exercise ordinary care for the safety of the general public traveling over the road on which he was working. Furlough v. Nash County Highway Commission, 195 N.C. 365, 142 S.E. 230, rehearing denied in 196 N.C. 160, 144 S.E. 693; Evans v. Shea Bros. Construction Co., 194 N.C. 31, 138 S.E. 411; Hughes v. Robert G. Lassiter & Co., 193 N.C. 651, 137 S.E. 806; Kehm v. Dilts, 222 Iowa 826, 270 N.W. 388; Toler v. Hawkins, 188 Okl. 58, 105 P.2d 1041.
The judge rightly refused to strike out the bare allegation of paragraph 3 of the complaint that the defendant contracted with the State Highway and Public Works Commission to 'hard-surface * * the Apex-McCullers Road.' That allegation must be read in combination with succeeding allegations of the complaint that the plaintiff was injured in her person and property by the negligent conduct of the defendant while it was actually working on the road under its contract with the Commission. When these allegations are thus read, they state facts showing that the defendant owed the plaintiff as a member of the traveling public the positive legal duty to exercise ordinary care to protect her from harm at the time and place named in the complaint because it was then and there engaged in an active course of conduct, i. e., paving a highway, under its contract with the State Highway and Public Works Commission; that the defendant violated this legal duty; and that such violation of this legal duty proximately resulted in injury to the plaintiff's person and property. Thus the allegation of paragraph 3 of the complaint bears a substantial relation to the controversy between the parties when it is considered contextually.
But it is otherwise with respect to the three portions of paragraph 5 of the complaint challenged by the defendant's motion to strike. When these particular allegations are reduced to simple...
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Lumsden v. U.S.
...duty to exercise ordinary care to protect others from harm and calls a violation of that duty negligence. Council v. Dickerson's, Inc., 233 N.C. 472, 64 S.E.2d 551 (1951); Stroud v. Transportation Co., 215 N.C. 726, 3 S.E.2d 297 (1939). The duty to protect others from harm arises whenever o......
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...court to binding state authority which defines the scope of a product manufacturer's duty. See Kientz, supra. Council v. Dickerson's Inc., 233 N.C. 472, 64 S.E.2d 551 (N.C.1951) concerns narrow circumstances under which the duty owed to the traveling public arises. The Court held that when ......
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...duty to exercise ordinary care to protect others from harm, and calls a violation of that duty negligence." Council v. Dickerson's, Inc., 233 N.C. 472, 474, 64 S.E.2d 551, 553 (1951). Thus, certain circumstances, one who undertakes to render services to another which he should recognize as ......
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