Alltop v. JC PENNEY COMPANY

179 S.E.2d 885 (1971)

10 N.C. App. 692

Annette ALLTOP v. J. C. PENNEY COMPANY, Inc.

No. 7110SC222.

Court of Appeals of North Carolina.

March 31, 1971.

*887 Jacob W. Todd and Charles P. Green, Jr., Raleigh, for plaintiff appellant.

Smith, Anderson, Dorsett, Blount & Ragsdale, by George R. Ragsdale, Raleigh, for defendant appellee.

HEDRICK, Judge.

Plaintiff first contends that Judge Hall's denial of the defendant's motion to dismiss for failure of the complaint to state a claim upon which relief could be granted precluded Judge Clark from considering and allowing defendant's motion for summary judgment in that it violates the principle of law that one superior court judge cannot overrule another superior court judge. This contention is without merit.

The federal courts, operating under rules practically identical to those in North Carolina, have held that the denial of a motion to dismiss for failure to state a claim upon which relief can be granted, which merely challenges the sufficiency of the complaint, does not prevent the court's allowing a subsequent motion for summary judgment based on affidavits outside the complaint. Crowell v. Baker Oil Tools, 49 F. Supp. 552 (D.C.Cal.1943), rev'd on other grounds, 143 F.2d 1003, cert. denied, 323 U.S. 760, 65 S. Ct. 93, 89 L. Ed. 608 (1944). See also Barron and Holtzoff, Federal Practice and Procedure (Wright Ed.), Vol. 3, § 1240. The test on a motion to dismiss for failure to state a claim upon which relief can be granted is whether the pleading is legally sufficient. 2A Moore's Federal Practice, par. 56.02 [3], p. 2035 (1965). See also United Milk Products Co. v. Lawndale Nat. Bank of Chicago, 392 F.2d 876 (7th Cir. 1968). But where a motion for summary judgment is made and is supported by matters outside the pleadings, the test is whether on the basis of the materials presented to the court there is any genuine issue as to any material fact. Moore's Federal Practice, supra; Richardson v. Rivers, 118 U.S. App.D.C. 333, 335 F.2d 996 (1964).

Plaintiff's other contention is that the trial judge erred in granting defendant's motion for summary judgment. The purpose of the summary judgment rule, Rule 56 of the Rules of Civil Procedure, is to provide an expeditious method for determining whether a material issue of fact actually exists. The rule states that "[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." Rule 56(c). See also, Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425 (1970); Patterson v. Reid, 10 N.C.App. 22, 178 S.E.2d 1 (1970).

The defendant's motion for summary judgment was supported by the deposition of the plaintiff. But plaintiff offered nothing to bolster the bare allegations of her complaint. G.S. § 1A-1, Rule 56(e), provides in part:

"* * * When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

In her complaint, plaintiff alleged that she did not owe the defendant any sum, but she admitted during the adverse examination that she had made credit purchases from the defendant using her husband's credit card, and her signature appears on 17 of the charge sales slips.

Plaintiff alleged that as a result of the defendant's conduct she became nervous and upset, yet she admits that she has not seen a doctor or taken any medication in this regard. Mere hurt or embarrassment *888 are not compensable. Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55 (1938). Nor are damages for mere fright recoverable unless there is contemporaneous physical injury resulting from the defendant's conduct. Crews v. Provident Finance Co., 271 N.C. 684, 157 S.E.2d 381 (1967).

Plaintiff also alleges that the conduct of the defendant has jeopardized her employment, yet the adverse examination reveals that up to the date of the examination the plaintiff was still employed at the same place of business, and that her income has at least remained the same.

The materials presented in support of defendant's motion for summary judgment show that plaintiff has suffered no compensable injury or damage, either to her personal health, or by reason of an adverse effect on her employment. Hence, we hold that the entry of summary judgment was proper since there appears to be no genuine issue as to any material fact. The judgment appealed from is

Affirmed.

CAMPBELL and BRITT, JJ., concur.