Davis v. Rhodes

• Decision Date: 09 November 1949
• Docket Number: 397
• Citation: 56 S.E.2d 43,231 N.C. 71
• Parties: DAVIS v. RHODES et al.
• Court: North Carolina Supreme Court

56 S.E.2d 43

231 N.C. 71

DAVIS v. RHODES et al.

No. 397

Supreme Court of North Carolina

November 9, 1949

Civil action to recover damages for wrongful death heard on demurrer.

This action was instituted December 13, 1947. The plaintiff in his complaint makes the necessary formal allegations and then alleges in substance that his intestate died December 19 1946; that he was killed while riding as a passenger on a motor scooter operated by plaintiff; that the scooter was being operated on its righthand side of the highway; that defendant Rhodes' automobile, being operated by his employee, defendant Riggs, in the regular course of his business, approached from the rear; and that the driver 'unlawfully, wrongfully, recklessly and negligently' struck and collided with said motor scooter, thereby causing the death of plaintiff's intestate.

The defendants, answering, admitted the collision and the death of the plaintiff's intestate, denied any negligence on their part, and pleaded the negligence of plaintiff and his wife in bar.

Thereafter on June 23, 1949, Frizzelle, J., entered an order permitting plaintiff to amend his complaint. Pursuant to said order plaintiff, on June 28, filed an amendment to the complaint in which he particularizes the acts of negligence relied upon. The defendants filed their answer thereto in which they allege by way of further answer that the original complaint 'does not state a cause of action against the said defendants, or either of them', and that the amended complaint was filed June 28, 1949, more than twelve months after the death of plaintiff's intestate. They plead the provisions of G.S. s 28-173 in bar and move to dismiss the action.

At the September Term, 1949, the cause came on to be heard in the court below on demurrer ore tenus and the motion to dismiss. The court, being of the opinion plaintiff's alleged cause of action is barred for the reason that the original complaint does not state a cause of action and the amendment to the complaint was filed more than twelve months after the death of plaintiff's intestate, sustained the demurrer and dismissed the action. Plaintiff excepted and appealed.

Allen & Parrott, Allen, Allen & La-Roque, Kinston, for plaintiff appellant.

J. A. Jones, Weston Olin Reed, Kinston, and Thomas B. Griffin, Kinston, for defendant appellees.

BARNHILL Justice.

Does the original complaint fail to state a cause of action for wrongful death? If so, then the complaint, as amended, was filed more than twelve months after the death of plaintiff's intestate, and the action is barred by the provisions of G.S. s 28-173.

On this question the defendants contend that the original complaint is fatally defective in that it states no cause of action. On the other hand, plaintiff insists that at least it constitutes a defective statement of a good cause of action and that the amendment does not inject new matter but merely particularizes the acts of negligence on the part of the defendants relied on by plaintiff.

The question thus presented involves a question of pleading which has been the subject of discussion in many decisions of this Court. It is useless for us to quote and cite all of them. Suffice it to say that they establish well-recognized principles of law which we have consistently followed.

There is a marked difference between the statement of a defective cause of action and a defective statement of a good cause of action.

When the defect goes to the substance of the cause and not to the form of the statement, it is a defective cause of action which cannot be made good by adding other allegations not included in the original complaint. It is in no event, however expertly stated, an enforceable cause of action. Ladd v. Ladd, 121 N.C. 118, 28 S.E. 190; Lassiter v. Norfolk & C. R. Co., 136 N.C. 89, 48 S.E. 642, 1 Ann.Cas. 456.

When, however, there is an enforceable cause of action stated but the statement thereof is inartificially expressed, or is in general terms, or the facts are not clearly and definitely stated, or it is lacking in some material allegation, it constitutes a defective statement of a good cause. That is, if the defect goes to the form of the statement and not to the substance of the cause, it is a defective statement of a good cause. Lassiter v. Norfolk & C. R. Co., supra; McIntosh, N. C. P. & P., 379.

A demurrer is designed to challenge the sufficiency of a complaint which contains the statement of a defective cause of action, McIntosh, N. C. P. & P., 399, 455, and is to be resorted to when the complaint is fatally defective in this respect. Womack v. Carter, 160 N.C. 286, 75 S.E. 1102, and cases cited; North Carolina Corporation Commission v.Harnett County Trust Co., 192 N.C. 246, 134 S.E. 656; Hoke v. Glenn, 167 N.C. 594, 83 S.E. 807, Ann. Cas.1916E, 250; Hartsfield v. Bryan, 177 N.C. 166, 98 S.E. 379; Foy v. Stephens, 168 N.C. 438, 84 S.E. 758; Bowling v. Fidelity Bank, 209 N.C. 463, 184 S.E. 13; Capps v. Atlantic Coast Line R. Co., 183 N.C. 181, 111 S.E. 533. Answer to the merits does not waive the defect.

That a complaint does not state a cause of action or there is a want of jurisdiction over the subject matter of the action are the radical grounds of objection to a pleading which are not waived by pleading to the merits and may be taken advantage of by demurrer at any time before final judgment. Halstead v. Mullen, 93 N.C. 252; Hanover Nat. Bank v. Cocke, 127 N.C. 467, 37 S.E. 507; Elizabeth City Water & Power Co. v. Elizabeth City, 188 N.C. 278, 124 S.E. 611.

When, however, the complaint alleges or attempts to allege a good cause of action but is defective in that it does not definitely and sufficiently set out all the essential, ultimate facts, or is inartificially stated, or is in general terms, demurrer will not lie if, when liberally construed, the allegations are sufficiently intelligible to inform the defendant as to what he is required to answer. The remedy is by motion to make the complaint more definite. Allen v. Carolina Cent. R. Co., 120 N.C. 548, 27 S.E. 76; Seaboard Air Line R. Co. v. Main, 132 N.C. 445, 43 S.E. 930; Bowling v. Fidelity Bank, supra; Lake Drummond Canal & Water Co. v. Burnham, 147 N.C. 41, 60 S.E. 650, 17 L.R.A.,N.S., 945, 125 Am.St.Rep. 527.

'The general rule is that, if there is any cause of action stated in the complaint, however inartificially expressed, the demurrer will be overruled. Blackmore v. Winders, 144 N.C. 212, 56 S.E. 874; Caho v. Norfolk & S. R. Co., 147 N.C. 20, 60 S.E. 640. If the defendant desired a more certain and definite statement of the alleged negligence, in order that it might know the precise nature of the charge, and so that its answer might be fully responsive to the complaint, the proper remedy was by motion' to make more definite. Jones v. Henderson, 147 N.C. 120, 60 S.E. 894, 896; Gillikin & Gaskell v. Lake Drummond Canal Co., 147 N.C. 39, 60 S.E. 654.

A demurrer to a defective statement of a good cause of action comes too late after answer. The defendant, by answering to the merits, waives the defect which is not fatal but may be cured by amendment. He may, however, move to make the complaint more definite. G.S. s 1-153; Eddleman v Lentz, 158 N.C. 65, 72 S.E. 1011; Hanover Nat. Bank v. Cocke, supra; Hitch...