Messick v. Turnage, 20
| Decision Date | 22 September 1954 |
| Docket Number | No. 20,20 |
| Citation | 240 N.C. 625,83 S.E.2d 654 |
| Parties | Mrs. Cassie M. MESSICK v. C. A. TURNAGE. |
| Court | North Carolina Supreme Court |
LeRoy Scott and L. H. Ross, Washington, for plaintiff, appellant.
Rodman & Rodman, Washington, for defendant, appellee.
The negligence sufficiently pleaded in the complaint is to the effect that the defendant 'knew or should have known * * * that said roof was leaking and in bad repair * * *. ' There is not a suggestion in the evidence that the roof was leaking and in bad repair. It was incumbent upon the plaintiff not only to prove negligence proximately causing her injury, but it was her duty to prove negligence substantially as alleged in her complaint. This she failed to do. Proof without allegation is as unavailing as allegation without proof. Smith v. Barnes, 236 N.C. 176, 72 S.E.2d 216; Bowen v. Darden, 233 N.C. 443, 64 S.E.2d 285.
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Jackson v. McBride, 537
...and his proof is so substantial as to constitute a material variance. Moore v. Hales, 266 N.C. 482, 146 S.E.2d 385; Messick v. Turnage, 240 N.C. 625, 83 S.E.2d 654; Deligny v. Tate Furniture Co., 170 N.C. 189, 86 S.E. 980; McCoy v. Carolina Cent. R.R., 142 N.C. 383, 55 S.E. 270. 'If the pla......
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Andrews v. Bruton
...Collas v. Regan, 240 N.C. 472, 82 S.E.2d 215. Proof without allegation is no better than allegation without proof. Messick v. Turnage, 240 N.C. 625, 83 S.E.2d 654. When there is a material variance between allegation and proof, motion for judgment of nonsuit will be allowed. Suggs v. Braxto......
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Moody v. Kersey, 698
...Collas v. Regan, 240 N.C. 472, 82 S.E.2d 215. Proof without allegation is no better than allegation without proof. Messick v. Turnage, 240 N.C. 625, 83 S.E.2d 654. When there is a material variance between allegation and proof, motion for judgment of nonsuit will be allowed. Suggs v. Braxto......
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Douglas v. W. C. Mallison and Son, 28
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