Nix v. English

119 S.E.2d 220 (1961)

254 N.C. 414

Eva NIX v. Ira ENGLISH and Ophella Smith.

No. 170.

Supreme Court of North Carolina.

April 12, 1961.

O. A. Warren and Whitener & Mitchem, Gastonia, for plaintiff, appellee.

Carpenter, Webb & Golding, Charlotte, for defendant, appellant.

BOBBITT, Justice.

The court's instructions refer solely to allegations of defendant's gross negligence set forth in plaintiff's "further Reply." They assume defendant lost control when stricken by an attack of insulin shock. The court's review of plaintiff's contentions on the first issue (gross negligence of defendant) was based on the testimony of defendant that she knew she had a headache when she was in Clarkesville and on the testimony of Smith that defendant staggered when she returned from the (Sisk) house to get back in the car. The sole question for jury determination on the first issue, under the court's instructions, was whether defendant drove the car from the Sisk home and continued to drive it when she knew or should have known she was likely to suffer an attack of insulin shock while operating the car and lose consciousness and endanger her passengers. In short, the first issue was submitted and tried on a theory first introduced by plaintiff in the "further Reply" filed at the close of all the evidence.

The complaint was not amended. Plaintiff did not seek leave to delete any of her original allegations as to defendant's gross negligence. The court did not instruct the jury to disregard plaintiff's original allegations or plaintiff's testimony in support thereof. There is nothing in plaintiff's testimony tending to show anything in defendant's conduct indicating she was about *224 to suffer or did suffer an attack of insulin shock. Plaintiff's testimony that defendant turned her head and spoke to her grandfather, who was on the back seat, at the time the car "began to run off the road," tends to show defendant was not then unconscious on account of an attack of insulin shock or otherwise. In short, the court ignored plaintiff's original allegations and her testimony in support thereof. The first issue was submitted and tried solely on allegations in the "further Reply," which, if supported, were supported by evidence offered by defendant.

The substantive rights and liabilities of the parties are to be determined in accordance with the law of Georgia, the lex loci. Procedural matters are to be determined in accordance with the law of North Carolina, the lex fori. Clodfelter v. Wells, 212 N.C. 823, 195 S.E. 11, and cases cited; Childress v. Johnson Motor Lines, 235 N.C. 522, 70 S.E.2d 558; McCombs v. McLean Trucking Co., 252 N.C. 699, 114 S.E.2d 683.

Thus, in determining "(t)he actionable quality of the defendant's conduct," the Georgia law controls. Howard v. Howard, 200 N.C. 574, 158 S.E. 101, 102; Harper v. Harper, 225 N.C. 260, 34 S.E.2d 185, and cases cited. Whether, under the substantive law of Georgia, the evidence offered by plaintiff is sufficient to require its submission to the jury is determinable in accordance with the law of this jurisdiction. Clodfelter v. Wells, supra; Childress v. Johnson Motor Lines, supra.

Under Georgia law, a guest passenger, to recover from his host, must allege and establish gross negligence. Gross negligence is defined by statute, Code of Georgia (Annotated), 1956 Revision, § 105-203, as the absence of "that degree of care which every man of common sense, howsoever inattentive he may be, exercises under the same or similar circumstances." Caskey v. Underwood, 89 Ga.App. 418, 79 S.E.2d 558. Under Austin v. Smith, 96 Ga. App. 659, 101 S.E.2d 169, plaintiff's original allegations of defendant's gross negligence appear sufficient. Too, under Georgia decisions, whether plaintiff's testimony tending to establish her said allegations was sufficient to support a finding of such gross negligence and its causal relationship to plaintiff's injury would seem a question for jury determination. Parker v. Johnson, 97 Ga.App. 261, 102 S.E.2d 917, and cases cited.

We do not hold the court erred in overruling defendant's motion for judgment of nonsuit. Rather, we hold the court erred in permitting plaintiff to file such reply and in submitting the case to the jury upon the allegations of the "further Reply." Hence, we do not consider the sufficiency of the evidence to support the allegations of gross negligence set forth in the "further Reply."

Ordinarily, evidence favorable to plaintiff, although offered by defendant, is to be considered in passing upon motion for judgment of nonsuit. However, this rule applies only to evidence relevant to the allegations of the complaint. Here, the evidence offered by defendant on which plaintiff seeks to rely tends to establish a factual situation radically different from that alleged by plaintiff in her complaint and supported by her testimony.

Whether an amendment of the complaint, incorporating therein the allegations set forth in the "further Reply," would be permissible, is not presented. G.S. § 1-163; Stamey v. Rutherfordton Electric Membership Corp., 249 N.C. 90, 105 S.E.2d 282; Perkins v. Langdon, 233 N.C. 240, 63 S.E.2d 565. No motion for leave to so amend the complaint was made.

Where the answer contains new matter constituting a counterclaim or defense, the plaintiff, by reply, may allege "any new matter not inconsistent with the complaint, constituting a defense to the new matter in the answer." (Our italics.) G.S. § 1-141. A reply is a defensive pleading. *225 Its purpose is to support, not to contradict, the complaint. 41 Am.Jur., Pleading, § 185. "The plaintiff cannot in his reply set up a cause of action different from that contained in his complaint. Such a pleading is a departure, and is governed by the provision that the reply must not be inconsistent with the complaint." McIntosh, North Carolina Practice and Procedure, § 479; Miller v. Grimsley, 220 N.C. 514, 17 S.E.2d 642. "* * * a party may not be allowed in the course of litigation to maintain radically inconsistent positions, or to state one cause of action in the complaint and in the replication another which is entirely inconsistent." Berry v. Hyde County Land & Lumber Co., 183 N.C. 384, 111 S.E. 707.

The gross negligence alleged in the complaint is predicated upon wrongful acts and omissions of a person in full possession of her faculties. The reply is predicated upon loss of consciousness and control when stricken by an attack of insulin shock, the alleged gross negligence consisting of the attempt to operate the car when defendant knew or should have known she was likely to suffer such attack. In our view, the cause of action asserted in the "further Reply" is a new cause of action and is radically inconsistent with the cause of action alleged in the complaint.

"The reply or replication must not depart from the complaint, petition, or declaration; and it follows that a reply or replication may not set up new causes of action, enlarge the original cause of action, broaden the scope of the complaint or petition, add or substitute new grounds of action or relief, or permit plaintiff to take a position inconsistent with that taken in the complaint. In other words, plaintiff must recover, if at all, on the cause of action stated in the petition and not on one stated in the reply." 71 C.J.S. Pleading § 200.

It is well settled in this jurisdiction that a plaintiff must make out his case secundum allegata. His recovery, if any, must be based on the allegations of his complaint. Andrews v. Bruton, 242 N.C. 93, 95, 86 S.E.2d 786, and cases cited; Manley v. Greensboro News Co., 241 N.C. 455, 460, 85 S.E.2d 672, and cases cited.

For error in permitting plaintiff to file such reply and in submitting the case to the jury upon the allegations of the "further Reply," defendant is entitled to a new trial. The reply is stricken. In the absence of further orders, the pleadings consist of the complaint and answer.

New trial.