{ "id": 8624140, "name": "RAYMOND PRESNELL v. E. L. BESHEARS, ED BESHEARS and WILTON BESHEARS", "name_abbreviation": "Presnell v. Beshears", "decision_date": "1947-03-26", "docket_number": "", "first_page": "279", "last_page": "282", "citations": [ { "type": "official", "cite": "227 N.C. 279" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "226 N. C., 345", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619197 ], "opinion_index": 0, "case_paths": [ "/nc/226/0345-01" ] }, { "cite": "56 S. E., 874", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "144 N. C., 212", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659404 ], "opinion_index": 0, "case_paths": [ "/nc/144/0212-01" ] }, { "cite": "218 N. C., 292", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617470 ], "opinion_index": 0, "case_paths": [ "/nc/218/0292-01" ] }, { "cite": "218 N. C., 560", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622454 ], "opinion_index": 0, "case_paths": [ "/nc/218/0560-01" ] }, { "cite": "196 S. E., 843", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N. C., 501", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628838 ], "opinion_index": 0, "case_paths": [ "/nc/213/0501-01" ] }, { "cite": "191 S. E., 349", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N. C., 622", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628332 ], "opinion_index": 0, "case_paths": [ "/nc/211/0622-01" ] }, { "cite": "100 S. E., 262", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "178 N. C., 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271806 ], "opinion_index": 0, "case_paths": [ "/nc/178/0205-01" ] }, { "cite": "137 S. E., 803", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "193 N. C., 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217813 ], "opinion_index": 0, "case_paths": [ "/nc/193/0599-01" ] }, { "cite": "113 S. E., 661", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "184 N. C., 154", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269546 ], "opinion_index": 0, "case_paths": [ "/nc/184/0154-01" ] }, { "cite": "225 N. C., 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603499 ], "opinion_index": 0, "case_paths": [ "/nc/225/0208-01" ] }, { "cite": "175 S. E., 179", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "opinion_index": 0 }, { "cite": "206 N. C., 687", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632400 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/206/0687-01" ] } ], "analysis": { "cardinality": 431, "char_count": 7714, "ocr_confidence": 0.452, "pagerank": { "raw": 1.7443460845108726e-07, "percentile": 0.7075478145637062 }, "sha256": "39610aa9be2e681f6fc6efa24f471cb1e5e64b2b8b8542d28e1bd6c472cd04e5", "simhash": "1:39439568e238ec8e", "word_count": 1312 }, "last_updated": "2023-07-14T16:20:04.384970+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RAYMOND PRESNELL v. E. L. BESHEARS, ED BESHEARS and WILTON BESHEARS." ], "opinions": [ { "text": "Devin, J.\nTbe motion to set aside the default judgment heretofore entered in the cause was based upon the ground that the plaintiff\u2019s complaint upon which the judgment was rendered did not state facts sufficient to constitute a cause of action against the defendants. There was no evidence or finding that the failure of the defendants to answer was due to excusable neglect. However, the court below being of opinion that the complaint was demurrable, and that defendants had a meritorious defense to the action, struck out the judgment and permitted the defendants to plead.\nThe effect of the failure of the defendants to appear in response to the summons and complaint personally served upon them was to establish pro c\u00f3nfesso in the plaintiff a right of action of the kind properly pleaded in the complaint and thereupon the plaintiff became entitled as a matter of law to recover on the cause of action set out in his complaint. G. S., 1-212; DeHoff v. Black, 206 N. C., 687, 175 S. E., 179; Johnson v. Sidbury, 225 N. C., 208, 34 S. E. (2d), 67. Defendants\u2019 failure to answer, however, admitted only the averments in the complaint and did not preclude them from showing, if they could, on this motion, that such averments were insufficient to warrant recovery. Beard v. Sovereign Lodge, 184 N. C., 154, 113 S. E., 661; Strickland v. Shearon, 193 N. C., 599 (604), 137 S. E., 803. Hence they were entitled to have the judgment vacated if the facts set out in the complaint should be determined to be insufficient to constitute a cause of action, as there would then be no basis upon which the default judgment could be predicated. McIntosh, 713. And in this Court the defendants demur ore tenus on the ground that the complaint does not state facts susfficient to constitute a cause of action.\nSo that the appeal presents the question of the sufficiency of the complaint to set out an actionable wrong for which these defendants may be held liable. This requires an examination of the allegations of the complaint.\nThe purpose of plaintiff\u2019s suit was to recover damages for a negligent injury to plaintiff\u2019s motor truck caused by defendants\u2019 truck, consequent upon a collision on the highway. It was alleged that plaintiff\u2019s truck was being driven along the highway from North \"Wilkesboro toward Boone, on the right side of the highway, in a careful manner, and that the Ford truck of the defendants, which had been parked on the left side of the highway, was suddenly driven from the left side of the highway at an unlawful speed and without warning into and against plaintiff\u2019s truck, causing injury. As to the responsibility of the defendants for this injury, it was alleged that on said date \u201cthe defendant E. L. Beshears was the owner of the old Ford truck which was being operated by the co-defendants Ed Beshears and Wilton Beshears as servants, agents and employees of their co-defendant E. L. Beshears. . . . That at the time of and immediately preceding the collision between the motor vehicles above referred to . . . the defendant E. L. Beshears and his agents and employees were negligent, in that they operated said truck carelessly, heedlessly, and in wilful disregard of the rights and safety of others and at a speed and in a manner so as to endanger person and property in violation of the laws of North Carolina.\u201d Particulars of negligent operation of defendants\u2019 truck were set out. It was further alleged \u201cthat the defendants were operating their truck without proper equipment and brakes.\u201d\nThe defendants criticize the complaint chiefly on the ground that it was not specifically alleged that Ed Beshears and Wilton Beshears, who are designated as agents and employees of E. L. Beshears, the owner of the offending truck, were at the time acting within the scope of their employment, and also that in several instances the allegations of negligence refer to the \u201cdriver of defendant\u2019s truck\u201d without more definite designation.\nHowever, in the consideration of a pleading, in order to determine its effect, we are required by statute, G. S., 1-151, to give to the allegations a liberal construction, and the rule has been adopted and uniformly followed that if in any portion of the complaint or to any extent it presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose fairly can be gathered from it, the pleading will stand, \u201chowever inartificially it may have been drawn or however uncertain, defective and redundant may be its statements, for, contrary to the common-law rule, every reasonable intendment and presumption must be made in favor of the pleader.\u201d Dixon v. Green, 178 N. C., 205, 100 S. E., 262; Leach v. Page, 211 N. C., 622, 191 S. E., 349; Pearce v. Privette, 213 N. C., 501, 196 S. E., 843; Cotton Mills v. Mfg. Co., 218 N. C., 560, 11 S. E. (2d), 550; Thomas v. R. R., 218 N. C., 292, 10 S. E. (2d), 722. \u201cA complaint cannot be overthrown by a demurrer unless it be wholly insufficient.\u201d Blackmore v. Winders, 144 N. C., 212, 56 S. E., 874.\nApplying these rules of construction' to the plaintiff\u2019s complaint in the case at bar, in the light of defendants\u2019 challenge, we are unable to agree with the learned judge below that the pleading upon which the default judgment was predicated was fatally defective.\nThe judgment by default and inquiry having been rendered by the clerk in accordance with G. S., 1-212, and the case transferred to the civil issue docket for execution of the inquiry, G. S., 1-214, the court was in error in striking out the judgment, and the cause is remanded for further proceedings in accordance with the statute. See DeHoff v. Black, 206 N. C., 687, 175 S. E., 179; Johnson v. Sidbury, 226 N. C., 345, 38 S. E. (2d), 82.\nRemanded.", "type": "majority", "author": "Devin, J." } ], "attorneys": [ "Trivette, Holshouser & Mitchell for plaintiff.", "Burlce & Burke for defendants H. L. Beshears and Ed Beshears.", "W. H. McElwee for defendant Wilton Beshears." ], "corrections": "", "head_matter": "RAYMOND PRESNELL v. E. L. BESHEARS, ED BESHEARS and WILTON BESHEARS.\n(Filed 26 March, 1947.)\n1. Judgments \u00a7 9\u2014\nFailure to plead within the time allowed admits the averments in the complaint entitling plaintiff to recover on the cause of action therein stated, G. S., 1-212, but does not preclude defendants from showing that the averments are insufficient to constitute a cause of action entitling . plaintiff to any relief.\nS. Judgments \u00a7 27a\u2014\nDefendants, by motion to set aside a judgment rendered by default and inquiry, are entitled to have the judgment vacated if the complaint is insufficient to allege a cause of action, without a showing of excusable neglect, since in such ease there is no basis upon which the default judgment can be predicated.\n3. Pleadings \u00a7 19c\u2014\nUpon demurrer, the complaint will be liberally construed and the demurrer overruled if in any portion of the complaint or to any extent it presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose fairly can be gathered from it. G. S., 1-151.\n4. Automobiles \u00a7 34c % \u2014\nAllegations that on the date of the accident the truck colliding with plaintiff\u2019s vehicle was being operated by named defendants as employees of defendant owner, and that the owner, his agents and employees were negligent in the operation of the truck in respects alleged, is held, sufficient, as against demurrer, to charge that the employees were acting within the scope of their employment, nor is it fatal that in several instances the allegations of negligence referred to \u201cthe driver of defendant\u2019s truck\u201d without more definite designation.\nAppeal by plaintiff from Sink, J., at January Term, 1947, of \"Wilkes.\nRemanded.\nMotion to set aside judgment rendered by default and inquiry. Motion allowed and plaintiff appealed.\nTrivette, Holshouser & Mitchell for plaintiff.\nBurlce & Burke for defendants H. L. Beshears and Ed Beshears.\nW. H. McElwee for defendant Wilton Beshears." }, "file_name": "0279-01", "first_page_order": 327, "last_page_order": 330 }