Spake v. . Pearlman

Seawell, J. Relative to the statement in the judgment that the evidence would not warrant an amendment to the complaint, we must keep in mind that the question posed for solution here does not arise out of a demurrer to the evidence or motion for judgment as of nonsuit for its insufficiency to go to the jury. The record does not disclose that any motion of that sort was made. If it was made, nevertheless the evidence was submitted to the jury and the defendants did not except or appeal. They got their deliverance from a different source. Demurrer to the complaint as not stating a cause of action may be made at any time after the pleading has been filed, either in the court below or here, pending-consideration of an appeal. C. S., 511 (6), 518; Raleigh v. Hatcher, 220 N. C., 613, 18 S. E. (2d), 207. In its consideration, the court will not, of course, consider any evidence adduced at the trial. In the case at bar, the ruling on the demurrer to the complaint is the only thing at issue upon the appeal. The complaint is challenged only with respect to the sufficiency of its allegations of negligence. "Within the scope of this exception, it is sufficient if the complaint, in a concise statement of the facts, apprises the defendant and the court of the nonperformance of some duty of care or protection which the defendant owed the plaintiff and the proximate causation of injury. 38 Am. Jur., p. 651, sec. 11; ib., p. 953, sec. 261: “Negligence and care are the sum and conclusion of a variety of attending circumstances characterizing the main acts bearing on or tending to prove the ultimate facts, and the rule of pleading is to charge them in this way, and to depend upon the evidence to establish the allegation.” One of the incidents of the shift from common law to code practice is the injunction placed upon the courts to construe pleadings liberally so that substantial justice may be done; whereas, at common law the pleading was strictly construed against the pleader. C. S., 535; Sexton v. Farrington, 185 N. C., 339, 117 S. E., 172; Pridgen v. Pridgen, 190 N. C., 102, 129 S. E., 419. The demurrer admits all the allegations of the complaint and all inferences that may reasonably be deduced from it under a liberal construction of its terms. Farrell v. Thomas and Howard Co., 204 N. C., 631, 632, 633, 169 S. E., 224; Hendrix v. R. R., 162 N. C., 9, 77 S. E., 1001; Brewer v. Wynne, 154 N. C., 467, 70 S. E., 947; Bank v. Duffy, 156 N. C., 83, 72 S. E., 96; Hartsfield v. Bryan, 177 N. C., 166, 98 S. E., 379; Hedgpeth v. Allen, 220 N. C., 528, 17 S. E. (2d), 652; Cheshire v. First Prebyterian Church, 220 N. C., 393, 17 S. E. (2d), 344; Purcell v. R. R., 108 N. C., 414, 424, 12 S. E., 954. *66 Judged by these standards, the complaint is not subject to successful demurrer. Had the judgment dismissing the action been non obstante veredicto, the plaintiff would be entitled to the judgment tendered by her, hut the verdict was set aside. The preamble suggests that this might have been done as a matter of law. But it is not strong enough to overcome the presumption which, nothing else appearing, would sustain the order as an exercise of discretion. The judgment dismissing the action is reversed and the plaintiff is awarded a new trial. Reversed. New trial.