{
  "id": 8525897,
  "name": "LORI A. FOX and BOB G. BRINKLEY, Co-Administrators of the Estate of SHERRY R. BRINKLEY, Plaintiffs v. KELLY E. KILLIAN and PATRICIA GALE KILLIAN, Defendants",
  "name_abbreviation": "Fox v. Killian",
  "decision_date": "1991-05-07",
  "docket_number": "No. 9025SC959",
  "first_page": "819",
  "last_page": "821",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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      "reporter": "S.E.2d",
      "year": 1985,
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    {
      "cite": "77 N.C.App. 83",
      "category": "reporters:state",
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  "last_updated": "2023-07-14T21:20:04.252791+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Parker and Greene concur."
    ],
    "parties": [
      "LORI A. FOX and BOB G. BRINKLEY, Co-Administrators of the Estate of SHERRY R. BRINKLEY, Plaintiffs v. KELLY E. KILLIAN and PATRICIA GALE KILLIAN, Defendants"
    ],
    "opinions": [
      {
        "text": "PHILLIPS, Judge.\nPlaintiffs\u2019 appeal is from an order dismissing their complaint against defendant Patricia Gale Killian under the provisions of Rule 12(b)(6), N.C. Rules of Civil Procedure, for failing to state a claim upon which relief can be granted. The action is for wrongful death and the complaint alleges that their intestate, Sherry R. Brinkley, died on 11 December 1987 as a result of a collision on Oxford School Road in Catawba County between her automobile and an automobile owned and negligently operated by Kelly E. Killian as the agent for defendant Patricia Gale Killian. No insurmountable bar to recovery appears on the face of the complaint, and its allegations are obviously sufficient to give defendant notice of the nature and substance of the claim, including \u201cthe transactions, occurrences or series of transactions or occurrences intended to be proved showing that the pleader is entitled to relief,\u201d as Rule 8(a)(1), N.C. Rules of Civil Procedure requires. The complaint against Patricia Gale Killian was dismissed because the court apparently was of the opinion that the allegations as to the agency principal relationship between Kelly E. Killian and Patricia Gale Killian are not sufficient to show that that relationship existed.\nThe agency relationship must be established, of course, before plaintiffs can recover of Patricia Gale Killian for the negligence of Kelly E. Killian, and with respect thereto the complaint alleges in pertinent part that: The collision occurred at 8:20 a.m.; appellee Patricia Gale Killian had \u201csolicited the services of Defendant, Kelly Killian, to transport her daughter... to Oxford Elementary School\u201d; that his \u201cmain purpose for operating his vehicle on Oxford School Road\u201d was to transport appellee\u2019s child to Oxford Elementary School; and that \u201cKelly Killian was the agent of Patricia Gale Killian and was acting in furtherance of her business with her knowledge, permission and consent.\u201d Under our system of notice pleadings these allegations, in our opinion, adequately state a legally enforceable claim against the appellee based upon a principal agency relationship with Kelly E. Killian, the alleged tortfeasor.\nIn arguing that the allegations are insufficient and that all the facts establishing the relationship had to be alleged defendant quotes from Braun v. Glade Valley School, Inc., 77 N.C.App. 83, 334 S.E.2d 404 (1985). But the quotation relied upon pertains to allegations of fraud, one of the few things that must be averred by stating the circumstances that constitute it \u201cwith particularity.\u201d Rule 9(b), N.C. Rules of Civil Procedure. Such particularity is not required of an agency allegation; all that is required is notice of the claim in compliance with Rule 8(a)(1) and the allegations meet that requirement. A complaint\u2019s function and purpose is not to prove but to allege; the sufficiency of the allegations does not depend upon a showing that they can be proved. Whether plaintiffs can produce evidence sufficient to prove that Kelly Killian was appellee\u2019s agent on the occasion involved is a question for another day. It is enough to resist defendant\u2019s motion that it does not appear to a certainty that plaintiffs cannot prove the allegation. Sutton v. Duke, 277 N.C. 94, 103, 176 S.E.2d 161, 166 (1970).\nReversed.\nJudges Parker and Greene concur.",
        "type": "majority",
        "author": "PHILLIPS, Judge."
      }
    ],
    "attorneys": [
      "Come, Pitts, Come, Grant & Edwards, P.A., by Robert M. Grant, Jr. and Linda J. Hatcher, for plaintiff appellants.",
      "Mitchell, Blackwell & Mitchell, P.A., by Hugh A. Blackwell and Keith W. Rigsbee, for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "LORI A. FOX and BOB G. BRINKLEY, Co-Administrators of the Estate of SHERRY R. BRINKLEY, Plaintiffs v. KELLY E. KILLIAN and PATRICIA GALE KILLIAN, Defendants\nNo. 9025SC959\n(Filed 7 May 1991)\nAutomobiles and Other Vehicles \u00a7 672 (NCI4th)\u2014 agency of driver for defendant \u2014 sufficiency of complaint\nPlaintiffs\u2019 complaint stated a claim against defendant for wrongful death on the theory that the negligent driver of an automobile involved in a collision was acting as the agent of defendant where it alleged that defendant had solicited the services of the driver to transport her daughter to elementary school; the driver\u2019s main purpose for operating his vehicle on the road where the accident occurred was to transport defendant\u2019s child to school; and the driver was the agent of defendant and was acting in furtherance of her business with her knowledge, permission and consent.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7 1085.\nAPPEAL by plaintiffs from order entered 17 April 1990 by Judge J. Marlene Hyatt in CATAWBA County Superior Court. Heard in the Court of Appeals 21 March 1991.\nCome, Pitts, Come, Grant & Edwards, P.A., by Robert M. Grant, Jr. and Linda J. Hatcher, for plaintiff appellants.\nMitchell, Blackwell & Mitchell, P.A., by Hugh A. Blackwell and Keith W. Rigsbee, for defendant appellees."
  },
  "file_name": "0819-01",
  "first_page_order": 849,
  "last_page_order": 851
}