Huntt v. Vanderbilt

• Decision Date: 09 October 1894
• Citation: 20 S.E. 168,115 N.C. 559
• Court: North Carolina Supreme Court
• Parties: HUNTT. v. VANDERBILT et al.

20 S.E. 168

115 N.C. 559

HUNTT.

v.VANDERBILT et al.

Supreme Court of North Carolina.

Oct. 9, 1894.

Pleading and Proof—Variance.

Where the complaint alleges that the act complained of was done by B., "under the superintendence, control, management, and direction of defendant, " and the evidence shows that B. was acting as an independent contractor, plaintiff cannot recover.

Appeal from superior court, Buncombe county; Armfield, Judge.

Action by J. E. Huntt against George W. Vanderbilt and others. There was a Judgment for defendants, and plaintiff appeals. Affirmed.

Chas. A. Moore, for appellant.

M. E. Carter and J. H. Merrimon, for appellees.

SHEPHERD, C. J. We have given this case a very careful consideration, but in view of the variance between the allegations and the proof, which in itself affords a sufficient ground for the intimation of his honor, we have concluded to refrain from the discussion of the interesting questions so elaborately argued by counsel, and which go to the merits of the controversy, when they shall be properly presented to the court. Although we are prepared to pass upon these questions, yet, as the case is of a peculiar character, and another action may be brought in which the testimony may present new or varying phases of fact, we have concluded that the course indicated is the safer one to pursue in the disposition of this appeal. After the testimony of the plaintiff was introduced, the court intimated that the plaintiff could not recover. As there was no motion to amend, we must, of course, assume that the intimation was made with reference to the cause of action stated In the complaint;and, if we turn to that pleading, it will be seen that it is repeatedly alleged that the act of Britt, for which the defendant is sued, was committed "under the superintendence, control, management, and direction of the defendant." This language is so used that it distinctly qualifies and controls any matter alleged in the nature of inducement or explanation, which sometimes, under the very liberal construction of code pleading, is held sufficient to avoid a variance; and it clearly imports that the defendant is sued for the conduct of Britt as the defendant's servant, and not otherwise. The testimony discloses that Britt was not the servant of the defendant, but an independent contractor; and as the principles of law upon which the defendant may be liable for the conduct of Britt in these distinct capacities are in some very essential...