Henry v. Home Finance Group, Inc.

Denny, J. The defendants expressly waive and abandon their first two assignments of error. The third assignment of error is bottomed on an exception to the failure of the court below to strike all of paragraph 11 of the complaint which reads as follows: “That prior to the matters hereinafter set forth [301] plaintiff enjoyed the confidence, friendship, esteem and high regard of many friends and acquaintances, both socially and in business relationship, that his credit was good, and that his prospects for a useful and successful career in business were good.” These allegations are sufficiently repetitious that they might have been stricken by the court below, but on appeal we will not strike allegations merely because they are irrelevant or redundant unless in our opinion their retention in the pleadings will cause harm or injustice to the moving party. The burden is on the appellant not only to show error but also that the alleged error is material and prejudicial. Daniel v. Gardner, 240 N.C. 249, 81 S.E. 2d 660; Dixie Lines v. Grannick, 238 N.C. 552, 78 S.E. 2d 410; Ledford v. Transportation Co., 237 N.C. 317, 74 S.E. 2d 653; Woody v. Barnett, 235 N.C. 73, 68 S.E. 2d 810; Lambert v. Schell, 235 N.C. 21, 69 S.E. 2d 11; Council v. Dickerson’s, Inc., 233 N.C. 472, 64 S.E. 2d 551; Hinson v. Britt, 232 N.C. 379, 61 S.E. 2d 185; Teasley v. Teasley, 205 N.C. 604, 172 S.E. 197. Certainly the defendants will suffer no prejudicial harm by allowing these allegations to remain in the complaint. Hence, this assignment of error is overruled. The tenth assignment of error is to the refusal of the court below to strike all of paragraph 21 of the complaint, which contains allegations with respect to special damages. The plaintiff alleges in this paragraph that as a direct and proximate result of the wrongful acts and utterances of the defendants, “a junked cars dealer who had purchased twenty (20) junked cars from plaintiff became afraid that some of the cars Cole Henry had been accused of stealing, as hereinbefore alleged, might be among those he purchased and he burned them,” and, among other things, he alleges that as a result of the wrongful acts and utterances of the defendants, his credit was impaired, and sets out specific instances; that reports became rampant to the effect that he had embezzled funds from the defendants, etc. (Italics ours.) In our opinion, that portion of paragraph 21 quoted above and italicized, is both irrelevant and prejudicial to the defendants and should be stricken, and it is so ordered. We have carefully examined the remaining assignments of error and, under the doctrine or rule laid down in the decisions cited herein with respect to the denial of motions to strike, they are overruled. Except as modified herein, the order below is affirmed. Modified and affirmed.