Watkins v. Kaolin Mfg. Co.

• Decision Date: 18 December 1902
• Citation: 42 S.E. 983,131 N.C. 536
• Parties: WATKINS v. KAOLIN MFG. CO.
• Court: North Carolina Supreme Court

42 S.E. 983

131 N.C. 536

WATKINS v. KAOLIN MFG. CO.

Supreme Court of North Carolina

December 18, 1902

Appeal from superior court, Jackson county; Moore, Judge.

Action by Flora J. Watkins against the Kaolin Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

One who has given a deed of trust on property may maintain an action for injury to the property, it still being sufficient to secure the debt, so that the loss falls on her.

Coleman C. Cowan, for appellant.

Walter E. Moore and Shepherd & Shepherd, for appellee.

COOK J.

The substantial questions raised by the defendant's assignments of error are: (1) Could the cause of action for damage done to the house and land be maintained by plaintiff trustor? (2) Does the complaint state a cause of action for physical injury to plaintiff? (3) Does a cause of action lie for physical injury resulting from fright and nervousness caused by negligent acts?

As to the first question: It is clear that the plaintiff had the right to bring this action for damages done to the freehold. She owned the premises in fee, subject to a deed of trust executed thereon to secure a debt. The conveyance of the title to the trustee did not disturb her possession or ownership as to trespassers and tort feasors. So long as the property was of sufficient value to secure the payment of the debt, the trustee and cestui que trust could sustain no loss or injury by reason of damage done to the premises. Therefore the loss by reason of the damage would fall upon the trustor the equitable owner, and she, being the party really injured had a right to maintain the action. She was in possession of the land, and, being the equitable owner, had the right to recover in an action of ejectment, although the legal title was in the trustee. Murray v. Blackledge, 71 N.C. 492; Farmer v. Daniel, 82 N.C. 152; Coudry v Cheshire, 88 N.C. 375; Taylor v. Eastman, 92 N.C. 601; Graves v. Trueblood, 96 N.C. 495, 1 S.E. 918. The trustee holding the legal title might have been made a party to the action, but his recovery would have inured only to the benefit of the trustor, which could be of no concern to the trespasser or tort feasor. A judgment in an action between the equitable owner in possession and the defendant for damages to the premises would be a bar to an action by the trustee. So no loss could befall the defendant. Had defendant deemed the trustee a necessary party to the action, it should have demurred (Code, § 239, subsec. 4), or answered (section 241); otherwise it will be deemed to have been waived (section 242).

As to the second question: Plaintiff alleges that she "became so nervous and frightened from the negligent and careless conduct and blasting of defendant that she could not sleep at night, and was greatly disturbed in body and mind, as well for herself and the safety of her children as the destruction of her property, to her great damage in the sum of nineteen hundred and ninety-nine dollars." To sustain this allegation she was allowed to prove that the blasting rendered her almost helpless; that she could not go about her daily duties, and could not keep on her feet to attend to her children; that it has affected her ever since, and has caused her female trouble out of its regular course. Under the old system of pleading, this variance would be fatal, but under the provisions of the Code the rule is greatly modified, and pleadings must be liberally construed for the purpose of determining their effect with a view to substantial justice between the parties. Code, § 260. From a liberal construction of plaintiff's allegation, it appears that the alleged negligent blasting greatly disturbed her in body and mind causing her to become so nervous and frightened that she could not sleep at night, causing her great damage; and, as the result, she proves that she was physically injured as above stated, to which defendant excepted, but did not allege that it was misled by such a variance. Therefore plaintiff was not called upon to amend her complaint so as to conform to the proof, and the variance is deemed immaterial. Code,§ 269; Lilly v. Baker, 88 N.C. 151; Patrick v. Railroad, 93 N.C. 422; Lawrence v. Hester, Id. 79; Usry v. Suit, 91 N.C. 406; Bank v. Burgwyn, 116 N.C. 122, 21 S.E. 202. It appearing that the defendant was not misled, the variance between the allegation and proof must be deemed to have been immaterial. Gibbs v. Fuller, 66 N.C. 116. Plaintiff, in her complaint, did not allege that she had been rendered almost helpless in consequence of such fright and nervousness, or that she could not go about her daily duties, and has been afflicted ever since with female trouble out of its regular course. But if defendant had alleged that it had been misled by such proof, and had proved the same to the satisfaction of the court, the judge may have ordered that the complaint be amended (section 269, Code), for amendments to pleadings which further justice, speed the trial of causes, or prevent circuity of action and unnecessary expense, are allowed on proper terms. Commissioners v. Blair, 76 N.C. 136. It clearly appears from the language of the allegation that plaintiff intended to charge that physical injury was done to her,--"was greatly disturbed in body, *** to her great damage,"--and we think it does state a cause of action for physical injury. If defendant was misled, and not put upon notice by it that plaintiff would offer evidence of injuries to her person resulting from fright, then it had its remedy under section 269 of the Code. Or, if defendant did not understand the precise nature of the charge made in the complaint, it had its remedy by applying to the court for an order to have it made more definite and certain. Clark's Code, § 261, and cases there cited. It does not appear from the record that any substantial rights of the defendant were affected by the failure to more fully set out plaintiff's cause of action, in which case the court properly disregarded the alleged defect in the pleadings. Code, § 276. Counsel having disagreed upon the issues, they were framed by the judge, and it is contended by the defendant that there was error in submitting the fourth and fifth issues, for that they were not raised by the pleadings (Miller v. Miller, 89 N.C. 209; Christmas v. Haywood, 119 N.C. 130, 25 S.E. 861); and that, where the pleadings do not distinctly and unequivocally raise an issue, it should not be submitted (Sprague v. Bond, 113 N.C. 552, 18 S.E. 701). But an issue was raised by the pleadings. Bearing in mind the requirement of the statute (section 260) 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," this contention cannot be sustained. Plaintiff's allegation is that she was "greatly disturbed in body, *** to her great damage. ***" The fourth issue is, "Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint?" and the fifth, "What compensatory damages, if any, is the plaintiff entitled to recover for her personal injuries?" Instead of alleging that she was "injured," she alleged that she was "disturbed in body," to her great damage. "Disturbed," says Webster, primarily means "to throw into disorder or confusion; to derange; to interrupt the settled state of; to excite from a state of rest." So, substituting the word "injured" for "disturbed in body," and...