Moore v. Carolina Casualty Insurance

ErviN, J. Although the pleadings in this case are both numerous and voluminous, a detailed analysis of their contents is not necessary to the decision of the only question rightly raised by the appeal, i.e., whether the court below properly sustained the oral demurrer directed to only one of the nineteen paragraphs in the plaintiff’s pleadings. This ruling is necessarily based on the theory that the plaintiff undertakes to sue upon two separate causes of action; that one of these causes of action is insufficiently asserted in paragraph (b) of the third amendment to the complaint; and that the other of these causes of action is [730] effectually stated in the remaining eighteen paragraphs of the plaintiff’s pleadings. The court has misinterpreted the allegations of the plaintiff; for she undertakes to state only one cause of action against the defendant. When her pleadings are read as a whole, it appears that the plaintiff elects to treat the insurance contract as wrongly broken and ended by the defendant, and that she alleges a good causé of action against the defendant for the recovery of damages resulting from its wrongful cancellation or repudiation. Abrams v. Insurance Co., 224 N.C. 1, 29 S.E. 2d 130, and 223 N.C. 500, 27 S.E. 2d 148; Garland v. Ins. Co., 179 N.C. 67, 101 S.E. 616; Trust Co. v. Insurance Co., 173 N.C. 558, 92 S.E. 558. See, also, 45 C.J.S., Insurance, section 465; Levy v. Massachusetts Acc. Co., 124 N. J. Eq. 420, 2 A. 2d 341; Pacific Mut. Life Ins. Co. of California v. Rhame, 32 F. Supp. 59. Paragraph (b) of the third amendment to the complaint does not purport to assert a separate cause of action, or to vary in any degree the cause of action stated in the other eighteen paragraphs of the plaintiff’s pleadings. It merely enumerates additional elements or items allegedly going to make up the sum total of the damages resulting from the wrongful cancellation or repudiation of the policy. We express no opinion as to whether such additional elements or items are recoverable by the plaintiff in this action; for lawsuits are to be tried as a whole and not as fractions. The defendant can adequately protect any rights it may have in this connection by objecting to any testimony which the plaintiff may present at the trial to establish the additional elements or items. It is an established rule of pleading in this jurisdiction that “when there is but one cause of action, or but one defense, a demurrer must cover the whole ground, or else it will be a nullity.” Sumner v. Young, 65 N.C. 579. This being true, “a demurrer will not lie to a single paragraph of a complaint, declaration, or petition on the ground that it does not state facts sufficient to constitute a cause of action, if the pleading as a whole states sufficient facts to constitute a cause of action.” 41 Am. Jur., Pleading, section 231. For the reasons given, the judgment sustaining the oral demurrer is Reversed.