Friday v. Adams

WiNBORNE, C. J. Of the twenty-seven assignments of error shown in the record on this appeal, defendants Dulin, appellants, bring forward in their brief fourteen,— the others, in accordance with provisions of Rule 28 of the Rules of Practice in the Supreme Court, 221 N.C. 544 at page 562, are taken as abandoned by appellants. The first assignment of error presented by appellants is based upon [549] exception to the 'action of the trial judge in declining to sustain their demurrer ore temas. The record shows the ground assigned for the demurrer is that the complaint does not state >a 'cause of action against them, the defendants Dulin, in that it appears from the face of the complaint that the sole, proximate cause of the motor vehicle collision in question was the negligence of the driver of the automobile in which plaintiff’s intestate was riding, and that even if defendants Dulin were guilty of any act of negligence, the same was insulated anc¡¡ rendered inoperative by the negligence of the defendant Alonzo Adams, driver of the car in which plaintiff’s intestate was riding. In this connection, “The office of demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of the allegations of the facts contained therein, 'and ordinarily relevant inferences of fact, necessarily deducible therefrom, 'are also admitted.” But the principle does not extend to admission of 'conclusions or inferences of law. Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761. See also Buchanan v. Smawley, 246 N.C. 592, 99 S.E. 2d 787, and oases cited. Indeed it is provided by statute, G.S. 1-151, that “in the construction of a pleading for the purpose of determining' its effect its allegations shall be liberally construed with a view to substantial, justice between the parties.” And the decision of this Court interpreting and applying the provisions of this statute require that every reasonable intendment must be in favor of the pleader. The pleading must be fatally defective before it will.he rejected as insufficient. See Ins. Co. v. McCraw, 215 N.C. 105, 1 S.E. 2d 369, and cases there cited; also Lewis v. Lee, 246 N.C. 68, 97 S.E. 2d 469, and Buchanan v. Smawley, supra. Applying these principles to the facts alleged in the complaint, admitted for the purpose, to be true, it may not be held that the allegations are so fatally defective as not to allege concurring negligence. Compare Riddle v. Artis, 243 N.C. 668, 91 S.E. 2d 894. Hence the ruling of the trial court in this respect was proper. Decisions cited and relied upon by defendants Dulin have been duly considered and found readily distinguishable in factual situations. Appellants also asdign as error the denial of their motions for judgment as of nonsuit at the close of all the evidence. In this respect the evidence offered is to be taken in the light most favorable to plaintiff, giving to him the benefit of reasonable inferences of fact. When so taken the evidence offered upon the trial in Superior Court is of sufficient probative value to take the case to the jury and to support [550] the verdict rendered on which judgment from which -appeal is taken is based. Other assignments of error, properly presented, have been given due consideration, and error for which a new trial should be granted is not'made to appear. No error. HiggiNS, J., took no part in the consideration or decision of this case.