Copple v. Warner

Bobbitt, J. We consider first the demurrer of Warner. Plaintiff alleges her injuries were proximately caused by the second col'lisiion, that is, when 'the West car collided with the Copple and Warner cars. Whether there is a misjoinder of parties and causes of action depends upon legal principles stated in Batts v. Faggart, ante, 641, and caséis citad. If, as defendant Warner asserts, the complaint does not allege facts sufficient to constitute a cause of action against him, there is no misjoinder of parties and causes of action. A cause of action consists of the facts alleged -in the complaint. G.S. 1-122(2); Lassiter v. R.R., 136 N.C. 89, 48 S.E. 642; Stamey v. Membership Corp., 249 N.C. 90, 94, 105 S.E. 2d 282. The facts alleged, but not the pleader’s legal conclusions, are deemed admitted where the sufficiency of a complaint is tested by demurrer. Skipper v. Cheatham, 249 N.C. 706, 710, 107 S.E. 2d 625. The crucial question is whether, upon the facts alleged, the alleged negligence of Warner, conceding Warner’s negligence proximately caused the first collision, may be considerad a (concurring) proximate cause of the second collision. While plaintiff alleged the second collision occurred “almost immediately following” the first collision, there was sufficient time between the first and second collisions according to. plaintiff’s allegations for Oopple to get out of his car* 'and engage in an attempt to pull loose tiie fenders of the Oopple and Warner cars. The only reasonable inference to foe drawn from plaintiff’s allegations is that the Oopple and Warner cans had collided and were at a 'standstill before West was in close proximity to said intersection. Plaintiff does not allege .the (right) lane for westbound travel on No. 62 was in any manner or to any extent blocked by the Oopple oar, the Warner car or otherwise. She alleges West traveling west on No. 62 did not yield at least one-half of the main traveled portion of the highway but negligently and wrongfully drove his car across the center line of No.. 62 ¡and there collided with the Copple 'and Warner oars. In our view, .plaintiff’s factual allegations are insufficient to show [731] that negligence on the part of Warmer in proximately causing the first collision was a (concurring) proximate cause of the second collision. The presentee of the Oopple and Warner cars in the (right) lane for eastbound travel on N>o. 62 must be regarded as a circumstance of the accident and not its proximate canse. Lee v. Upholstery Co., 227 N.C. 88, 90, 40 S.E. 2d 688, and. oases cited; Henderson v. Henderson, 239 N.C. 487, 492, 80 S.E. 2d 383. Warner’s demurrer should have been sustained on the ground the complaint as to Warner did not 'allege facts sufficient to constitute a cause of 'action, thereby eliminating the question as to the misjoinder of parties and causes of action. The court’s order does not indicate the ground on which Warner’s demurrer was sustained. Presumably, since the order dismisses the action, the demurrer was sustained on the ground of misjoinder of parties and causes of 'action. As indicated, such ruling was erroneous. In these circumstances, the order relating to Warner’s demurrer is vacated and the cause is remanded for the entry of an order sustaining Warner’s demurrer on the specific ground' that, ias to Warner, the complaint does not ‘allege facts 'Sufficient to constitute a cause of ¡action. As to the demurrer of defendant West: Obviously, the complaint alleges facts sufficient to constitute a 'cause of action against West for the injuries plaintiff alleges she sustained, namely, injuries proximately caused by said second collision. Moreover, since plaintiff has not alleged facts sufficient to constitute a cause of action as to Warner, there is no misjoinder -of causes of actiomi. The court erred in sustaining West's demurrer and in. dismissing the action as to West. Hence, the order relating to West’s demurrer is vacated and the cause remanded for the entry of ‘an order overruling West’s demurrer in its entirety. Error -and remanded.