Shives v. Sample

Annotate this Case

79 S.E.2d 193 (1953)

238 N.C. 724

SHIVES v. SAMPLE et al.

No. 378.

Supreme Court of North Carolina.

December 2, 1953.

*194 J. G. Lewis, Statesville, for plaintiff, appellee.

Adams, Dearman & Winberry, Statesville, for defendants, appellants.

JOHNSON, Justice.

The complaint, when tested by established principles of Code pleading, fails to allege a cause of action.

G.S. § 1-122, which is an integral part of our Code of Civil Procedure, provides that "The complaint must contain * * * 2. A plain and concise statement of the facts constituting a cause of action, * * *." (Italics added.)

The cardinal requirement of this statute, as emphasized by numerous authoritative decisions of this Court, is that the facts constituting a cause of action, rather *195 than the conclusions of the pleader, must be set out in the complaint, so as to disclose the issuable facts determinative of the plaintiff's right to relief. Gillis v. Transit Corporation, 193 N.C. 346, 137 S.E. 153; Griggs v. Griggs, 213 N.C. 624, 197 S.E. 165; Lassiter v. Roper, 114 N.C. 17, 18 S.E. 946; Moore v. Hobbs, 79 N.C. 535.

It is fundamental that on demurrer only facts properly pleaded are to be considered, with legal inferences and conclusions of the pleader to be disregarded. Bumgardner v. Allison Fence Co., 236 N.C. 698, 74 S.E.2d 32; Citizens Bank of Marshall v. Gahagan, 210 N.C. 464, 187 S.E. 580; Ideal Brick Co. v. Gentry, 191 N.C. 636, 132 S.E. 800; Broad Street Bank v. National Bank, 183 N.C. 463, 112 S.E. 11, 22 A.L.R. 1124.

In an action or defense based upon negligence, it is not sufficient to allege the mere happening of an event of an injurious nature and call it negligence on the part of the party sought to be charged. This is necessarily so because negligence is not a fact in itself, but is the legal result of certain facts. Therefore, the facts which constitute the negligence charged and also the facts which establish such negligence as the proximate cause, or as one of the proximate causes, of the injury must be alleged. Daniels v. Montgomery Ward & Co., 217 N.C. 768, 9 S.E.2d 388; Furtick v. Bonnie Cotton Mills, 217 N.C. 516, 8 S.E.2d 597; Moss v. Bowers, 216 N.C. 546, 5 S.E.2d 826. See also Baker v. Atlantic Coast Line R. Co., 232 N.C. 523, 61 S.E.2d 621.

As stated by Connor, J., in Thomason v. Seaboard Air Line Railroad Co., 142 N.C. 318, 324, 55 S.E. 205, 207, a pleading "which alleges negligence in a general way, without setting forth with some reasonable degree of particularity the things done, or omitted to be done, by which the court can see that there has been a breach of duty, is defective and open to demurrer." See also McIntosh, North Carolina Practice and Procedure, Sec. 359.

In the case at hand the plaintiff predicates his right of recovery on failure of the defendants to exercise due care to provide him a reasonably safe place in which to work. Murray v. Atlantic Coast Line R. Co., 218 N.C. 392, 11 S.E.2d 326; Baker v. Atlantic Coast Line R. Co., supra, 232 N.C. 523, 61 S.E.2d 621.

However, in testing the sufficiency of the complaint it must be kept in mind that the general rule which imposes liability upon a master for injury resulting from unsafety of the place where the servant works does not ordinarily apply where the servant is working on premises of a third person and the master neither has possession nor control over the premises. This is so for the reason that this general rule of liability, resting as it does upon the theory of failure on the part of the master to exercise due care to make and keep the place of work reasonably safe, necessarily flows from, and is dependent upon, possession or control of the premises. Crawford v. Michael & Bivens, Inc., 199 N.C. 224, 154 S.E. 58; Atkinson v. Corriher Mills Co., 201 N. C. 5, 158 S.E. 554; Hughes v. MaIden & Melrose Gaslight Co., 168 Mass. 395, 47 N.E. 125; 35 Am.Jur., Master and Servant, Sections 174 and 186.

Here no facts are alleged tending to show that the defendants had possession or control of the stock pile of crushed stone and gravel where the injury occurred. If anything, the implication is that the stock pile was in the possession and under the control of a third party. The allegations are that the defendants are residents of Iredell County, engaged in the trucking business, and that the stock pile was located in Alexander County; that the plaintiff, as employee of the defendants, "was operating one of their trucks under their control and direction, hauling and unloading crushed stone and gravel on said stock pile, under the direction and control of the defendants." The expression "under the direction and control of the defendants," we interpret as meaning that the plaintiff was operating the truck "under the *196 direction and control of the defendants," rather than that the stock pile was "under the direction and control of the defendants." But this is not important, for if the expression should be interpreted as being referable to the stock pile, clearly it would be a mere conclusion of the pleader, unsupported by factual allegations, and therefore to be disregarded. Patuxent Development Co. v. Bearden, 227 N.C. 124, 41 S.E.2d 85; Anderson Cotton Mills v. Royal Mfg. Co., 218 N.C. 560, 11 S.E.2d 550; Whitehead v. Carolina Telephone & Telegraph Co., 190 N.C. 197, 129 S.E. 602; Baker v. Atlantic Coast Line R. Co., 205 N.C. 329, 171 S.E. 342.

It is also noted that no particular facts are stated concerning the condition of the stock pilenothing is alleged in respect to its general layout, its shape, its size, or the manner in which the rock and gravel were being deposited thereon. No facts are stated descriptive of the nature and extent of the hollow place in or underneath the stock pile where the alleged cavein occurred. Nothing is alleged respecting how or when the stock pile became hollow underneath. All this is left to conjecture. Nor is there any factual allegation upon which to predicate a showing that the plaintiff did not have the same knowledge, or means of knowledge, of the danger as did the defendants. It is merely alleged that the defendants "knew, or * * * should have known, that the stock pile was hollow * * * and was likely to cave in * *." In the absence of supporting factual allegations, this is a conclusion of the pleader to be disregarded. Patuxent Development Co. v. Bearden, supra, 227 N.C. 124, 41 S.E.2d 85.

We conclude that the judgment below should be reversed and the demurrer sustained. It is so ordered. This, of course, is without prejudice to the plaintiff's right to move in the court below for leave to amend his complaint under the provisions of G.S. § 1-131.

Reversed.