Bumgardner v. Allison Fence Co.

74 S.E.2d 32 (1953)

236 N.C. 698

BUMGARDNER v. ALLISON FENCE CO. et al.

No. 307.

Supreme Court of North Carolina.

January 6, 1953.

*35 Theodore F. Cummings, Hickory, for plaintiff appellee.

Smathers & Shuford, Hickory, for defendants Allison Fence Co. and Robert H. George, appellants.

Smathers & Carpenter, Lewis B. Carpenter and William B. Webb, Charlotte, for defendant H. M. Barger, appellant.

WINBORNE, Justice.

We treat the appeals of appellants in the order of their names:

Appeal of Allison Fence Company and Robert H. George.

The demurrer of these defendants brings into focus the allegations of plaintiff's complaint and raises the question as to whether or not the facts alleged are sufficient to constitute a cause of action against them. For this purpose the truth of the allegations contained therein is admitted, and "ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted, but the principle does not extend to the admissions of conclusions or inferences of law", Stacy, C. J., in Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761, 763; also Commerce Ins. Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369, and Ferrell v. Worthington, 226 N.C. 609, 39 S.E.2d 812, and numerous other cases.

Indeed, it is provided by statute, G.S. § 1-151, 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". And decisions of this Court interpreting and applying the provisions of this statute require that every reasonable intendment must be in favor of the pleader. The pleading must be fatally defective before it will be rejected as insufficient. See Commerce Ins. Co. v. McCraw, supra, and cases there cited.

In the light of the provisions and principle of the statute, as so interpreted and applied, consideration of the facts alleged leads this Court to conclude that the allegations in respect to these defendants are not so fatally defective, as a matter of law, as to require the sustaining of the demurrer on the ground upon which it is predicated. The factual situation may be fully developed upon the trial in Superior Court. Then the court may consider the case in the light of the evidence offered. And such consideration will not be foreclosed by decision now made on the demurrer. See Montgomery v. Blades, 222 N.C. 463, at page 469, 23 S.E.2d 844; Lewis v. Shaver, 236 N.C. 510, 73 S.E.2d 320, and cases there cited.

As to the Appeal of H. M. Barger:

Careful consideration of the matters to which this defendant excepts and assigns as error fails to disclose error. We need refer only to allegations pertaining to the gruesomeness of the wounds inflicted upon plaintiff's intestate. It would appear that they have bearing upon the allegations of negligence of this defendant in *36 operation of his taxi. See Herman v. Atlantic Coast Line R. Co., 197 N.C. 718, 150 S.E. 361; Hinnant v. Atlantic Coast Line R. Co., 202 N.C. 489, 163 S.E. 555. Compare the cases of State v. Miller, 219 N.C. 514, 14 S.E.2d 522, and State v. Gardner, 228 N.C. 567, 46 S.E.2d 824, and Carolina Coach Co. v. Central Motor Lines, 229 N.C. 650, 50 S.E.2d 909, where photographs were involved. Here, as there, the trial court may keep the evidence within due bounds.

Hence, the judgment on both appeals is Affirmed.

PARKER, J., took no part in the consideration or decision of this case.