Friday v. Adams

• Decision Date: 14 January 1960
• Docket Number: No. 161,161
• Citation: 111 S.E.2d 893,251 N.C. 540
• Parties: R. R. FRIDAY, Administrator of the Estate of Jack Armstrong, Deceased v. Alonzo ADAMS, Newton Blair Dulin, Jr., and Newton Blair Dulin, Sr.
• Court: North Carolina Supreme Court

Page 893

111 S.E.2d 893

251 N.C. 540

R. R. FRIDAY, Administrator of the Estate of Jack Armstrong, Deceased v. Alonzo ADAMS, Newton Blair Dulin, Jr., and Newton Blair Dulin, Sr.

No. 161

Supreme Court of North Carolina.

Jan. 14, 1960

Oscar F. Mason, Jr., Verne E. Shive, Gastonia, for plaintiff appellee.

Garland & Garland, Gastonia, for defendants Dulin appellants.

WINBORNE, Chief Justice.

Of the twenty-seven assignments of error shown in the record on this appeal, defendants Dulin, appellants, bring forward in their brief fourteen,--the others, in accordance with provisions of Rule 28 of the Rules of Practice in the Supreme Court, 221 N.C. 544, at page 562, are taken as abandoned by appellants.

The first assignment of error presented by appellants is based upon exception to the action of the trial judge in declining to sustain their demurrer ore tenus.

The record shows the ground assigned for the demurrer is that the complaint does not state a cause of action against them, the defendants Dulin, in that it appears from the face of the complaint that the sole, proximate cause of the motor vehicle collision in question was the negligence of the driver of the automobile in which plaintiff's intestate was riding, and that even if defendants Dulin were guilty of any act of negligence, the same was insulated and rendered inoperative by the negligence of the defendant Alonzo Adams, driver of the car in which plaintiff's intestate was riding.

In this connection, 'The office of demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the allegations of the facts contained therein, and ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted.'

But the principle does not extend to admissions of conclusions or inferences of law. Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761. See also Buchanan v. Smawley, 246 N.C. 592, 99 S.E.2d 787, and cases cited.

Indeed it is provided by statute, G.S. § 1-151, that 'in the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed with a view to substantial justice between the parties.' And the decisions of this Court interpreting and applying the provisions of this statute require that every reasonable intendment must be in favor of the pleader. The pleading must be fatally defective before it will be rejected as insufficient. See Commerce Ins. Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369, and ...