Gammon v. Clark

214 S.E.2d 250 (1975)

25 N.C. App. 670

Geneva Perkins GAMMON v. William Jackson CLARK.

No. 7517SC123.

Court of Appeals of North Carolina.

May 7, 1975.

*251 Blackwell & Farmer by R. Lee Farmer, Yanceyville, for plaintiff-appellant.

McLeod & Campbell by W. F. McLeod, Reidsville, for defendant-appellee.

ARNOLD, Judge.

The sole question for decision is whether the complaint sets forth matters sufficient to constitute a cause of action. Judgment on the pleadings is proper only when the pleadings fail to present any issue of fact for the jury. Jones v. Warren, 274 N.C. 166, 161 S.E.2d 467 (1968). See also Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E.2d 494 (1974); 6 Strong, N.C.Index 2d, Pleadings § 38, pp. 376-77.

The rule, as stated by Ervin, J., is as follows:

"When a party moves for judgment on the pleadings, he admits these two things for the purpose of his motion, namely: (1) The truth of all well-pleaded facts in the pleading of his adversary, together with all fair inferences to be drawn from such facts; and (2) the untruth of his own allegations in so far as they are controverted by the pleading of his adversary. [Citations omitted.]" Erickson v. Starling, 235 N.C. 643, 656, 71 S.E.2d 384, 393 (1952).

In the case at bar, plaintiff has alleged and defendant has admitted facts from which a jury could infer that defendant was negligent. Defendant's allegation of plaintiff's negligence is controverted by plaintiff's reply and for the purpose of his motion is deemed untrue. The factual allegation of defendant's negligence, however, remains in issue. Since judgment on the pleadings was improper, the order of the trial court is

Reversed.

BROCK, C. J., and PARKER, J., concur.