Shives v. Sample

JOHNSON, J. 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 than the conclusions of the pleader, must be set out in the complaint, so as to disclose the issuable facts determinative of the plaintiffs 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. Fence Co., 236 N.C. 698, 74 S.E. 2d 32; Bank v. Gahagan, 210 N.C. 464, 187 S.E. 580; Brick Co. v. Gentry, 191 N.C. 636, 132 S.E. 800; Bank v. Bank, 183 N.C. 463, 112 S.E. 11. 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. 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. R. R., 232 N.C. 523, 61 S.E. 2d 621. As stated by Connor, J., in Thomason v. Railroad, 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. *727 In tbe case at band tbe plaintiff predicates bis right of recovery on failure of tbe defendants to exercise due care to provide him a reasonably safe place in wbicb to work. Murray v. R. R., 218 N.C. 392, 11 S.E. 2d 326; Baker v. R. R., supra (232 N.C. 523). However, in testing tbe sufficiency of tbe complaint it must be kept in mind that tbe general rule wbicb imposes liability upon a master for injury resulting from unsafety of tbe place where tbe servant works does not ordinarily apply where tbe servant is working on premises of a third person and tbe master neither has possession nor control over tbe premises. This is so for tbe reason that this general rule of liability, resting as it does upon .the theory of failure on tbe part of tbe master to exercise due care to make and keep tbe place of work reasonably safe, necessarily flows from, and is dependent upon, possession or control of tbe 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. Malden & Melrose Gaslight Co. (Mass.), 47 N.E. 125; 35 Am. Jur., Master and Servant, Sections 174 and 186. Here no facts are alleged tending to show that tbe defendants bad possession or control of tbe stock pile of crushed stone and gravel where tbe injury occurred. If anything, tbe implication is that tbe stock pile was in tbe possession and under tbe control of a third party. Tbe allegations are that tbe defendants are residents of Iredell County, engaged in tbe trucking business, and that tbe stock pile was located in Alexander County; that tbe plaintiff, as employee of tbe defendants, “was operating one of their trucks under their control and direction, hauling and unloading crushed stone and gravel on said stock pile, under tbe direction and control of the defendants.” Tbe expression “under tbe direction and control of tbe defendants,” we interpret as meaning that tbe plaintiff was operating tbe truck “under tbe direction and control of tbe defendants,” rather than that the stock pile was “under the direction and control of the defendants.” But this is not important, for if tbe expression should be interpreted as being referable to tbe stock pile, clearly it would be a mere conclusion of tbe pleader, unsupported by factual allegations, and therefore to be disregarded. Development Co. v. Bearden, 227 N.C. 124, 41 S.E. 2d 85; Mills v. Mfg. Co., 218 N.C. 560, 11 S.E. 2d 550; Whitehead v. Telephone Co., 190 N.C. 197, 129 S.E. 602; Baker v. R. R., 205 N.C. 329, 171 S.E. 342. It is also noted that no particular facts are stated concerning tbe condition of tbe stock pile — nothing is alleged in respect to its general layout, its shape, its size, or tbe manner in wbicb tbe rock and gravel were being deposited thereon. No facts are stated descriptive of tbe nature and extent of tbe hollow place in or underneath tbe stock pile where tbe alleged eave-in occurred] Nothing is alleged respecting bow or when'the stock *728 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. Development Co. v. Bearden, supra (227 N.C. 124). 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.