Parker v. Duke University

• Decision Date: 28 September 1949
• Docket Number: 99
• Citation: 55 S.E.2d 189,230 N.C. 656
• Parties: PARKER v. DUKE UNIVERSITY et al.
• Court: North Carolina Supreme Court

55 S.E.2d 189

230 N.C. 656

PARKER v. DUKE UNIVERSITY et al.

No. 99

Supreme Court of North Carolina

September 28, 1949

Civil action to recover damages for death of plaintiff's intestate, alleged to have been caused by the wrongful act neglect or default of the defendants.

Plaintiff's intestate was a patient in Highland Hospital, Asheville, N C., occupying a room in Central Building, on the night of 10-11 March, 1948, when said building was destroyed by fire and plaintiff's intestate suffocated.

Plaintiff sets up a common-law action for negligence, and then in paragraph 9 of the complaint, adds seven specific allegations of negligence in violation of a city ordinance and under the General Statutes of North Carolina relating to 'Fire Prevention' for 'hotels and other buildings of like occupancy '. G.S. s 69-27 et seq.

In apt time, the defendants moved to strike these specific allegations of ordinance and statutory violations from the complaint as being inapplicable, improper and prejudicial.

The motion was overruled, and the defendants appeal, assigning error 'in the signing of the judgment as appears in the record'.

W R. McGuire, Jones & Ward, George Pennell, Asheville, and Jesse A. Jones, Kinston, for plaintiff, appellee.

Harkins Van Winkle & Walton, Asheville and E. C. Bryson, Durham, for defendants, appellants.

STACY Chief Justice.

The single imputed error 'in the signing of the judgment', presents only the question whether error appears on the face of the record. Query v. Gate City Life Ins. Co., 218 N.C. 386, 11 S.E.2d 139; Wilson v. Charlotte, 206 N.C. 856, 175 S.E. 306; Smith v. Smith, 223 N.C. 433, 27 S.E.2d 137; King v. Rudd, 226 N.C. 156, 37 S.E.2d 116; Rader v. Queen City Coach Co., 225 N.C. 537, 35 S.E.2d 609.

We are not prepared to say that such has been revealed or made manifest. Nor is it according to precedent to chart the course of the trial on close or attenuate motions to strike portions of the pleadings. Pemberton v. Greensboro, 205 N.C. 599, 172 S.E. 196; Hardy v. Dahl, 209 N.C. 746, 184 S.E. 480; Scott v. Bryan, 210 N.C. 478, 187 S.E. 756; Ludwick v. Southern R. Co., 212 N.C. 664, 194 S.E. 282; Hill v. Stansbury, 221 N.C. 339, 20 S.E.2d 308; Penny v. Stone, 228 N.C. 295, 45 S.E.2d 362.

The same matters will be presented when the evidence is offered and they can then be readily determined by the rulings thereon. Of course, the judgment here appealed from would...