Wood v. Kincaid

• Decision Date: 16 April 1907
• Citation: 57 S.E. 4,144 N.C. 393
• Parties: WOOD v. KINCAID et al.
• Court: North Carolina Supreme Court

57 S.E. 4

144 N.C. 393

WOOD

v.KINCAID et al.

Supreme Court of North Carolina.

April 16, 1907.

Pleading — Demurrer — Motion to Make Moke Definite and Certain.

Where a complaint is alleged to be defective in form, in that the terms of the contract sued on are not fully and clearly stated, such defects may not be objected to by demurrer to the substance, but should be remedied by a motion to make the pleading more definite and certain, or, where permissible, by a demurrer to its form.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, § 409.]

Appeal from Superior Court, Iredell County; Moore, Judge.

Action by Lee C. Wood against J. J. Kincaid and others. From an order overruling a demurrer of defendant Fidelity & Casualty Company, it appeals. Affirmed.

This action was brought by the plaintiff to recover of the defendant the Cleveland Manufacturing Company damages for injuries which it is alleged were sustained while in its employ, through its negligence, and against the other defendant, the Fidelity & Casualty Company, upon the allegation that by the terms of a written contract between the said defendants, which was supported by a sufficient consideration, the Fidelity & Casualty Company became equally liable with its codefendant, the Cleveland Manufacturing Company, for the negligence and omission of duty of the latter in respect to its servants and employes, and for all injuries to them resulting therefrom; the Fidelity & Casualty Company by the said contract having expressly covenanted and agreed to become responsible for and with its codefendant for any and all injuries received by the latter's employes and servants which are caused by its negligence. The Fidelity & Casualty Company demurred upon the following grounds: First, the plaintiff does not allege that it was connected in any manner with the negligence of its codefendant which caused the injury to the plaintiff; and, second, that the allegations of the complaint, if true, show a contract between the Fidelity Company and its codefendant whereby, upon certain terms and conditions, it agreed to indemnify and save harmless the latter against losses, and it is not alleged that the plaintiff was a party to said contract, or privy thereto in any way, or that the same was for his benefit. The demurrer was overruled, and the Fidelity & Casualty Company appealed.

Armfield & Turner, for appellant.

H. P. Grier, W. G. Lewis, and L. C. Caldwell, for appellee.

WALKER, J. (after stating the case). A demurrer is an objection that the pleading against which it is directed is insufficient in law to support the action or defense, and that the demurrant should not, therefore, be required to further plead. It is not its office to set out facts; but it must stand or fall by the facts as alleged in the opposing pleading, and it can raise only questions of law as to their sufficiency. It is a fundamental rule of law that a demurrer will only lie for defects which appear upon the face of the alleged defective pleading, and extraneous or collateral facts, stated in the demurrer, cannot be considered in deciding upon its validity. A demurrer averring any fact not. stated in the pleading which is attacked, commonly called a "speaking demurrer, " is never allowable. 6 Pl. & Pr. 296 et seq; Von Glahn v. De Rossett, 76 N. C. 292. It seems from the excellent brief of counsel for defendant, and certain allegations of fact in the demurrer not appearing in the complaint, that it was intended by the Fidelity Company to raise the question whether an indemnity company can be held liable to an employe who is injured by his employer's negligence, where it has contracted to be liable only when the employer has been damnified, or suffered actual loss, by reason of the negligence, and whether, even in such a case, it can be joined as a defendant with the employer in an action to recover damages for the negligence. This is a very grave question, and will...