{
  "id": 8615714,
  "name": "GERTRUDE SAYLES, Administratrix of the Estate of TALMADGE SAYLES, Deceased, v. V. P. LOFTIS",
  "name_abbreviation": "Sayles v. Loftis",
  "decision_date": "1940-06-08",
  "docket_number": "",
  "first_page": "674",
  "last_page": "677",
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "190 N. C., 256",
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  "last_updated": "2023-07-14T22:38:29.672243+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "GERTRUDE SAYLES, Administratrix of the Estate of TALMADGE SAYLES, Deceased, v. V. P. LOFTIS."
    ],
    "opinions": [
      {
        "text": "Clarkson, J.\nThe allegations of the complaint set forth a cause of action. In the case of Riggs v. Mfg. Co., 190 N. C., 256, where a workman was injured by the falling of a tree without notice, this Court said: \u201cThe warning must not only be given, but it must be a timely warning\u2014 proper warning. Such reasonable time so that workmen can avoid injury.\u201d\nArticle 16 of the complaint is as follows: \u201cThat as said tree fell it struck plaintiff\u2019s intestate with great force and killed him. Article 16 of the answer is as follows: \u201cThe defendant admits that as the tree accidentally fell in a totally unforeseeable manner it accidentally struck plaintiff\u2019s intestate, causing injuries from which he died, without fault on the part of this defendant.\u201d\nAppellant (plaintiff) moved to strike the above quoted paragraph of the answer, or, in lieu of striking the same in its entirety, to strike the word \u201caccidentally\u201d from each of the places where it appears, the words \u201cin a totally unforeseeable manner\u201d and the words, \u201cwithout fault on the part of this defendant.\u201d The plaintiff contends that the paragraph of the answer about which appellant complains is evasive and irresponsive; and being so it does not conform to the applicable statutory requirements.\nN. C. Code, 1939 (Michie), sec. 519, is as follows: \u201cThe answer of the defendant must contain: 1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. 2. A statement of any new matter constituting a defense or counterclaim in ordinary and concise language, without repetition.\u201d\nThe answer denies liability and at the same time inartificially sets up a defense \u2014 N. C. Code, supra, sec. 522. Under the facts and circumstances of this case, we cannot uphold plaintiff\u2019s motion to strike, under our liberal practice.\nN. C. Code, supra, sec. 535, is as follows: \u201cIn 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.\u201d\nWe think a motion by plaintiff to make the pleading by defendant \u201cdefinite and certain by amendment\u201d would be a more correct procedure than to \u201cstrike.\u201d N. C. Code, supra, sec. 537.\nThe second motion of plaintiff to strike is more serious. Plaintiff moves \u201cTo strike from the answer of the defendant Article 1 of the further answer, for that: The averments of said article are immaterial and would not, if true, constitute a defense or a portion of a defense. . . . The averments appearing in said article after the second semicolon merely state a conclusion or conclusions of law, and at that an incorrect conclusion or conclusions. . . . Motion to strike Article II of the further answer, the terms and provisions of the North Carolina Workmen\u2019s Compensation Act and the alleged assignment of the right of action by the defendant do not constitute a plea in bar or a defense or a portion of a defense and are immaterial.\u201d\nThe said article for which plaintiff moves to strike being as follows: \u201cThat prior to and on the 21st day of August, 1939, this defendant employed more than five regularly; that he operated under the terms and conditions of the North Carolina Workmen\u2019s Compensation Act, as did his employees; that by the terms and provisions of the North Carolina Workmen\u2019s Compensation Act, the exclusive jurisdiction for the determination of the matters and things arising herein is in the North Carolina Workmen\u2019s Compensation Commission created by the terms and provisions of the North Carolina Workmen\u2019s Compensation Act, and defendant pleads the want of jurisdiction of this Court as a bar to plaintiff\u2019s further proceedings herein. . . . The defendant avers that all liabilities created and existing under and by virtue of the terms and provisions of the' North Carolina Workmen\u2019s Compensation Act have been settled and determined; that by this procedure an assignment of the right of action, if any existed, all of which this defendant denies, against him, was consummated; that plaintiff is not the real party in interest and does not have the right, or the sole right, to maintain this action and defendant pleads the terms and provisions of the North Carolina Workmen\u2019s Compensation Act and the assignment of the right of action against him, if any existed, which he denies, as a bar to plaintiff\u2019s further proceedings herein.\u201d\nThe defendant contends that his answer is predicated upon section 11 of the North Carolina Workmen\u2019s Compensation Act (Michie\u2019s Code, 8081-r) and section 19 of the act (Michie\u2019s Code, 8081-aa), et seq.\nThe approved test upon such a motion to strike is whether the alleged matter is competent to be shown at the trial. Pemberton v. Greensboro, 203 N. C., 514. We think the question here presented has been considered and determined, adversely to defendant\u2019s contention, by this Court. Brown v. R. R., 202 N. C., 256; Mack v. Marshall Field & Co., ante, 55.\nWe predicate this opinion on the record as now presented to this Court.\nFor the reasons given, the judgment of the court below is\nModified and affirmed.",
        "type": "majority",
        "author": "Clarkson, J."
      }
    ],
    "attorneys": [
      "Hobgood & Ward, Chas. M. Ivey, Jr., and Z. H. Howerton for plaintiff.",
      "Sapp <S Sapp for defendant."
    ],
    "corrections": "",
    "head_matter": "GERTRUDE SAYLES, Administratrix of the Estate of TALMADGE SAYLES, Deceased, v. V. P. LOFTIS.\n(Filed 8 June, 1940.)\n1. Negligence \u00a7 1\u2014\nAllegations tliat defendant felled a tree in close proximity to plaintiff\u2019s intestate without warning intestate so as to enable him to escape to a place of safety and that the tree struck and killed intestate, is held to state a cause of action.\n2. Pleadings \u00a7 29 \u2014 Denial of motion to strike held not error under rule that pleading will he liberally construed.\nIn reply to plaintiff\u2019s allegation that intestate was struck and killed by a tree felled by defendant, defendant' admitted that as the tree accidentally fell in an unforeseeable manner it accidentally struck and killed intestate, without fault on the part of defendant. Held: The refusal of the court to grant plaintiff\u2019s motion to strike the paragraph of the reply, or the parts thereof inartificially setting up a defense, is not held for reversible error, plaintiff\u2019s more appropriate remedy being a motion to make defendant\u2019s pleading more definite and certain. O. S., 537, 535, 522. 519.\n3. Same: Master and Servant \u00a7 44 \u2014 In action for wrongful death, motion to strike allegations upon which were predicated defense that Industrial Commission had exclusive jurisdiction should have been granted.\nThis action was instituted by an administratrix to recover for wrongful death of intestate. It appeared from the allegations and admissions that intestate was an employee of a subcontractor of defendant contractor, and was killed by a tree felled on the job. Defendant\u2019s answer alleged facts upon which it contended that the cause alleged was within the exclusive jurisdiction of the Industrial Commission, and that an award had been made under the Compensation Act and any right of action against defendant assigned, and that plaintiff does not have the right, or sole right, to maintain the action. Plaintiff moved to strike such allegations from the complaint. Held: Upon the record as constituted plaintiff\u2019s motion to strike should have been granted. Michie\u2019s Code, 8081 (r), 8081 (aa).\n4. Pleadings \u00a7 29\u2014\nThe test upon a motion to strike is whether the alleged matter is competent to be shown' upon the trial.\nAppeal by plaintiff from Alley, J., at 15 April, 1940, Civil Term, of Guilford.\nModified and affirmed.\nThis is an action for actionable negligence, brought by plaintiff against the defendant alleging damage. The action is for alleged wrongful death. N. C. Code, 1939 (Michie), sec. 160. The complaint, verified by plaintiff, was filed on 17 February, 1940, and therein it is alleged that plaintiff\u2019s intestate was killed on 21 August, 1939, by the negligent felling of' a tree by defendant in close proximity to plaintiff\u2019s intestate, without warning him so as to enable him to escape to a place of safety.\nFrom the face of the complaint and admissions contained in the answer, it appears that, on the day complained of, defendant was engaged as a general contractor on a project upon which the employer of plaintiff\u2019s intestate was engaged as a subcontractor. In the complaint there is no mention of or reference to workmen\u2019s compensation, the Workmen\u2019s Compensation Act, or any compensation or other benefits under said act or any matters pertaining thereto. The answer contains three paragraphs to which plaintiff objects, namely, Article 16, and Articles 1 and 2 of the further answer. In Article 16 defendant in admitting certain allegations of the complaint has inseparably interwoven in the form of admissions certain matters he alleged. Plaintiff by motion seeks to strike said article or the portion thereof constituting its defects. In Articles 1 and 2 of the further answer defendant pleads the Workmen\u2019s Compensation Act, a settlement (it is not indicated by whom) of all liabilities and perforce an assignment of any right of action against him in bar of plaintiff\u2019s further proceeding. Plaintiff, by motion, seeks to strike said articles. Upon the hearing of plaintiff\u2019s motion in the Superior Court, it was denied, and plaintiff excepted, assigned error and appealed to the Supreme Court. Tbe exceptions and assignments of error and other necessary facts will be set forth in the opinion.\nHobgood & Ward, Chas. M. Ivey, Jr., and Z. H. Howerton for plaintiff.\nSapp <S Sapp for defendant."
  },
  "file_name": "0674-01",
  "first_page_order": 740,
  "last_page_order": 743
}