Whichard v. Lipe

• Decision Date: 04 March 1942
• Docket Number: 667.
• Citation: 19 S.E.2d 14,221 N.C. 53
• Parties: WHICHARD v. LIPE et al.
• Court: North Carolina Supreme Court

19 S.E.2d 14

221 N.C. 53

WHICHARD v. LIPE et al.

No. 667.

Supreme Court of North Carolina

March 4, 1942

Civil action to recover damages for wrongful death resulting from an alleged collision between an oil trailer tank truck being operated by plaintiff's deceased and a truck belonging to the defendant.

The oil truck being driven by Whichard, plaintiff's intestate, was found on the Fayetteville-Sanford highway in Harnett County. It had run into a culvert under the road causing the tank trailer to turn over on the cab. As a result it caught fire. Plaintiff's intestate was in the truck at the time and was burned to death. Another truck belonging to defendant was three or four hundred feet north of the burning truck headed in the same direction and parked on its right side. There was circumstantial evidence tending to show that the two trucks had come into collision by sideswiping.

The plaintiff alleges that the truck belonging to defendant was being operated at the time of the collision by one L. C Tilley and she makes Tilley a defendant.

The defendant offered no evidence.

There was a verdict for plaintiff. From judgment thereon the defendant appealed.

Sapp Sapp & Atkinson, of Greensboro, and Joseph L. Murphy Jr., of Hickory, for appellant.

Gold McAnally & Gold, of High Point, for appellee.

BARNHILL, Justice.

Plaintiff elected to allege that defendant Tilley (who was not served with summons) was operating defendant's truck at the time it allegedly collided with the truck occupied by plaintiff's intestate. Expressio facit cessare tacitum. There is no evidence tending to support this allegation. Plaintiff so understood and during the trial took the position that some agent of defendant was driving but declined to say which one. The court likewise so understood and more than once charged the jury "there is no evidence in this case as to who was operating the truck known as the Lipe truck." Non constat this variance was apparent almost from the beginning of the trial plaintiff made no motion to amend but elected to stand her ground upon the complaint as written.

"It has so often been said, as to have grown into an axiom, that proof without allegation is as unavailing as allegation without proof. There must, under the old or new system of pleading, be allegata and probata, and the two must correspond with each other. When the proof materially departs from the allegation, there can be no recovery without an amendment." Talley v. Granite Quarries Co., 174 N.C. 445, 93 S.E. 995, 996; McKee v. Lineberger, 69 N.C. 217; Brittain v. Daniels, 94 N.C. 781; Faulk v. Thornton, 108 N.C. 314, 12 S.E. 998; Hunt v. Vanderbilt, 115 N.C. 559, 20 S.E. 168; Green v. Biggs, 167 N.C. 417, 83 S.E. 553.

The plaintiff must make out her case secundum allegata and the court cannot take notice of any proof unless there be a corresponding allegation. Brittain v. Daniel, supra; Faulk v. Thornton, supra; McCoy v. Carolina Cent. R. R., 142 N.C. 383, 55 S.E. 270.

Where there is a material variance between the allegation and the proof this defect may be taken advantage of by motion for judgment as of nonsuit, there being a total failure of proof to support the allegation. State v. Gibson, 169 N.C. 318, 85 S.E. 7; State v. Harbert, 185 N.C. 760, 118 S.E. 6; State v. Jackson, 218 N.C. 373, 11 S.E. 149, 131 A.L.R. 143, and cases cited.

The plaintiff has failed to establish her cause of action as alleged. She requested no amendment. Hence, the motion for judgment as of nonsuit should have been allowed.

Defendant seriously contends that in any event the cause should be nonsuited for failure of proof. Some of us concur in this view for the reason that we are of the opinion there is no proof of negligence or proximate cause. However, in view of the variance between the allegations and the evidence, which in itself requires a reversal on the ruling on the motion to nonsuit, we have concluded to refrain from a discussion or decision of this question. If plaintiff pursues her cause further then, upon a retrial, the testimony may present new and varying phases of fact. The trial Judge should be free to rule thereon unrestrained by any decision by us upon the evidence as it appears on this record. Hence, the course followed in Hunt v. Vanderbilt, supra, is the safer and more impartial one to pursue in the disposition of this appeal.

Whether the plaintiff may now in this cause move in the court below for leave to amend under statute C.S. § 545, et seq. is not now before us for decision. See Shelton v. Davis, 69 N.C. 324.

The judgment below is reversed.

SEAWELL J., dissenting.

SEAWELL, Justice (dissenting).

Whatever may be its final decision, should this case come here again upon a similar state of facts, the Court has expressly declined to rule one way or the other as to whether there is any evidence in the record in support of plaintiff's claim. The decision dismissing the action by judgment of nonsuit rests solely on the suggested fact of variance between the allegation and proof with respect to the identity of defendant's servant or agent charged with the negligence alleged to have produced plaintiff's injury. To test the correctness of this ruling it must be conceded that there is at least some evidence in support of plaintiff's claim, whether we presently deal with it or not, since otherwise the reservation of opinion on this point would be meaningless.

I think it will not be contended that it was necessary for the plaintiff in stating his cause of action to allege the name or the identity of the driver of defendant's truck any more than it would be necessary for a pleader to name the engineer who caused injury by negligently operating a train. The fact that Tilley is named as a co-defendant is of no significance on this point as far as Lipe, the other defendant, is concerned. But the plaintiff did name such servant and as the evidence apparently discloses he was not the man. This brings us to a consideration of the matter of variance and the rules which, as a matter of law, should be applied in this case. I think the main opinion has departed from established practice and from our own statutory law, which I regard as so imperative as to be compelling.

Upon the admission of the defendant, Lipe, shown upon the trial, the jury might have inferred that another agent of the defendant, one Sullivan, was in charge of the car. According to the evidence Sullivan had power to employ an assistant.

True, there is a "total failure" of proof that Tilley was the man driving defendant's car, but not a total failure of proof with respect to plaintiff's cause of action, which, under the authorities addressed to the subject, and our own statute law, is necessary to justify dismissal as of nonsuit. The statutes which I shall presently quote are of application to civil cases, and are not to be confused with any statute of jeofale, C.S. § 4625, applicable to criminal indictments, although intended to accomplish similar reforms of common law practice. State v. Hedgecock, 185 N.C. 714, 117 S.E. 47. Opinions in criminal cases involving variance are inapplicable.

It has been considered as axiomatic that a difference between the allegations of a complaint and the evidence adduced to support them does not constitute a material variance unless there is a substantial departure in the evidence from the issues upon which the cause of action depends. 49 C.J. 808. "*** a substantial departure from the issue in the evidence adduced, *** in some matter which in point of law is essential to the charge or claim." 21 R.C.L. 608, and cases cited; Browning v. Berry, 107 N.C. 231, 12 S.E. 195, 10 L.R.A. 726. It is not necessary to prove that which it was not essential to allege. Cedar Falls Co. v. Wallace Bros., 83 N.C. 225; Gallagher v. Gunn, 16 Ga.App. 600, 85 S.E. 930; Orr v. Dawson Telephone Co., 35 Ga.App. 560, 133 S.E. 924.

In many jurisdictions adequate statutes have been enacted to relieve against the harshness of the common law doctrine and practice with reference to this subject. Olson v. Snake River Valley R. Co., 22 Wash....