King v. . Coley

Baknhjll, J. That a complaint must be liberally construed is axiomatic with us and requires no citation of authority. The rule is ordinarily invoked and is consistently applied when the sufficiency of a pleading is challenged by demurrer. But this does not mean that the pleader may dispense with the certainty, regularity, and uniformity which is essential in every system adopted for the administration of justice. The plaintiff must state his cause of action with the same substantial certainty as was required at common law Oates v. Gray. 66 N. C., 442. The notion that the code of civil procedure is without order or certainty and that any pleading, however loose or irregular, may be upheld is erroneous. Webb v. Hicks, 116 N. C., 598. While the pleadings are to be construed liberally they are to be so construed as to give the defendant an opportunity to know the grounds upon which he is charged with liability. Thomason v. R. R., 142 N. C., 318; McLaurin v. Cronly, 90 N. C., 50. “The facts should be so stated as to leave the defendant in no doubt as to the alleged cause of action against him, so that he may know’ how *261 fo answer, and what defense to make.” Hussey v. R. R., 98 N. C., 34; Taylor v. R. R., 145 N. C., 400. When the plaintiff seeks to recover in one action on two or more causes of action, he must state each cause of action separately, setting out in each the facts upon which that cause of action rests. G. S. 1-123; Bale 20 (2), Eules of Practice in the Supreme Court, 221 N. C., 557. See also Bule 19, ibid., 553; McIntosh, P. & P., 442. It is to be noted that while the provision of the statute requiring each cause of action to be stated separately, as printed in G. S., 1-123, is so arranged as to make it appear that it relates only to subsection 7, the history of the statute, as well as the language used, indicates that it applies to each and every ease in which two or more causes of action are joined in the same complaint. The last sentence in G. S. 1-123 (7), to wit: “But the causes of action so united must all belong to one of these classes, and, except in actions for the foreclosure of mortgages, must, affect all the parties to the action, and not require different places of trial, and must be separately stated.”, appears in a separate and distinct paragraph following subsection 7 in the original Code of Civil Procedure and in all other codifications of the Act. The error in printing first occurred in Michie’s unofficial codes. The codifiers of the General Statutes apparently followed the unofficial rather than the official codes. Eevisal, sec. 469; Code, sec. 267; C.C.P., sec. 126; C. S., 507. See also Clark, Code of Civil Procedure Annotated, p. 286, and the Code with Notes and Decisions, by Tourgee, p. 115. Here the complaints are cast in tort to recover damages resulting from i he alleged negligence of the defendants. It is apparent they were prepared with that theory of defendants’ liability in mind. There is no second cause of action stated. No reference is made to any implied warranty or to any breach thereof. In the Irene Bailey King complaint she does allege: “13. That as a result of the defendants’ negligence and breach of warranty as hereinbefore set forth, this plaintiff w7as damaged . . This is the only reference she makes to any warranty and this allegation is not contained in the other complaints. In all, the proximate cause of the injuries received is repeatedly alleged to have been the negligence of the defendants. It was upon this theory the evidence was offered. But when plaintiffs failed to make out a case of negligence, the court below submitted the issues which appear of record. Thus the defendants went into court to defend an action in tort for negligence and, although they won that action, they came out of court with a judgment against them for breach of warranty. *262 Whether the issues submitted are sufficient to sustain a judgment on a cause of action for breach of an implied warranty we need not now decide, for wo are of the opinion that the complaints, on this record, do not state any cause of action ex contractu and did not serve to put the defendants on notice that they were charged with liability for breach of implied warranty. They should not be compelled to answer in damages upon any cause of action of which they had not been given prior notice and an opportunity to prepare their defense. In applying the rule of liberal construction, due regard must be had to the right of defendants to this notice and opportunity. It is a right to which they are entitled and of which they may not be deprived under the guise of any rule of construction. It is not sufficient that the plaintiffs have a cause of action and can prove it; they must first plead it, then prove it. McLaurin v. Cronly, supra. Williams v. Elson, 218 N. C., 157, 10 S. E. (2d), 668, upon which plaintiffs rely, is distinguishable. There, breach of warranty was clearly and definitely alleged. For the reasons stated the verdict and judgment must be vacated. This leaves the plaintiffs at liberty to seek redress for breach of implied warranty if so advised. The judgment below is Reversed.