{ "id": 8598018, "name": "WESLEY G. HEATH v. ALBERT T. KIRKMAN and L. JOHN KIRBY, t/a KIRK'S SINEATH MOTOR COMPANY, and WILLIAM ATKINS", "name_abbreviation": "Heath v. Kirkman", "decision_date": "1954-05-19", "docket_number": "", "first_page": "303", "last_page": "310", "citations": [ { "type": "official", "cite": "240 N.C. 303" } ], "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": "112 S.E. 421", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "183 N.C. 614", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657611 ], "opinion_index": 0, "case_paths": [ "/nc/183/0614-01" ] }, { "cite": "14 S.E. 2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "219 N.C. 607", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625562 ], "opinion_index": 0, "case_paths": [ "/nc/219/0607-01" ] }, { "cite": "51 A.L.R. 1114", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "134 S.E. 855", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "192 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621588 ], "opinion_index": 0, "case_paths": [ "/nc/192/0287-01" ] }, { "cite": "14 S.E. 2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "219 N.C. 475", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624776 ], "opinion_index": 0, "case_paths": [ "/nc/219/0475-01" ] }, { "cite": "50 S.E. 2d 530", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "229 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12166673 ], "opinion_index": 0, "case_paths": [ "/nc/229/0509-01" ] }, { "cite": "18 S.E. 2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "220 N.C. 648", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11307522 ], "opinion_index": 0, "case_paths": [ "/nc/220/0648-01" ] }, { "cite": "81 S.E. 2d 660", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "69 N.C. 329", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2085513 ], "opinion_index": 0, "case_paths": [ "/nc/69/0329-01" ] }, { "cite": "67 S.E. 2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "234 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621499 ], "opinion_index": 0, "case_paths": [ "/nc/234/0276-01" ] }, { "cite": "72 S.E. 2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 212", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624065 ], "opinion_index": 0, "case_paths": [ "/nc/236/0212-01" ] }, { "cite": "74 S.E. 2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 719", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627580 ], "opinion_index": 0, "case_paths": [ "/nc/236/0719-01" ] }, { "cite": "77 S.E. 2d 617", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "238 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606096 ], "opinion_index": 0, "case_paths": [ "/nc/238/0288-01" ] }, { "cite": "75 S.E. 2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "237 N.C. 607", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616636 ], "opinion_index": 0, "case_paths": [ "/nc/237/0607-01" ] }, { "cite": "49 S.E. 2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "229 N.C. 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12165499 ], "opinion_index": 0, "case_paths": [ "/nc/229/0258-01" ] }, { "cite": "221 N.C. 557", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 843, "char_count": 20361, "ocr_confidence": 0.468, "pagerank": { "raw": 4.5850772798202544e-07, "percentile": 0.9254778946571789 }, "sha256": "5d9434fe195341f82c776ce63fee281c680d3fc273b5c5b51cbd67d4f85ab24e", "simhash": "1:8bcb5dc9d252c0c8", "word_count": 3301 }, "last_updated": "2023-07-14T16:47:25.593057+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WESLEY G. HEATH v. ALBERT T. KIRKMAN and L. JOHN KIRBY, t/a KIRK\u2019S SINEATH MOTOR COMPANY, and WILLIAM ATKINS." ], "opinions": [ { "text": "Eobbitt, J.\nIt is plain that the complaint states facts sufficient to constitute a cause of action for damages for personal injuries proximately caused by the negligence of defendants in operating the wrecker in such manner as to strike and injure plaintiff.\nIf more than one cause of action is stated, the complaint is subject to demurrer; for there is no attempt to state separately more than one cause of action. In instances where plaintiff may unite in the same complaint two or more causes of action, each cause of action must be separately stated. Gr.S. 1-123. Demurrer is proper when it appears upon the face of the complaint that, \u201c5. Several causes of action have been improperly united.\u201d Gr.S. 1-127. The quoted provision has been considered frequently when demurrer has been interposed on the ground that two or more separately stated causes of action have been improperly united in the same complaint. It is equally applicable when a complaint alleges facts sufficient to constitute two or more causes of action hut fails to state separately facts sufficient to constitute each cause of action. Gr.S. 1-123; Rule 20 (2), Rules of Practice in the Supreme Court, 221 N.C. 557; King v. Coley, 229 N.C. 258, 49 S.E. 2d 648; Parker v. White, 237 N.C. 607, 75 S.E. 2d 615; Large v. Gardner, 238 N.C. 288, 77 S.E. 2d 617. Too, each separately stated cause of action must be complete within itself; and it is not permissible to incorporate by reference allegations set forth in another separately stated cause of action. Wrenn v. Graham, 236 N.C. 719, 74 S.E. 2d 232; Alexander v. Brown, 236 N.C. 212, 72 S.E. 2d 522; Guy v. Baer, 234 N.C. 276, 67 S.E. 2d 47.\nIn the words of Rodman, J., in Land Co. v. Beatty, 69 N.C. 329 : \u201cOn examining the complaint we find that it does not profess to state more than one cause of action. If in fact it states two it would he demurrable, because it compounds and does not state them separately.\u201d Unless the contrary plainly appears, it will be assumed that a complaint that does not set forth separate statements of more than one cause of action is intended to allege a single cause of action and that intimations of other causes of action are mere embellishments and not germane to the cause of action constituting the heart of the complaint.\n\u201cIf there are several causes of action alleged, the defendant may demur to each one separately, or he may demur to some and answer to the others, and if the demurrer should be sustained to any one cause it would not affect the others; but if a demurrer is interposed to the whole complaint and any one of the causes of action is good, the demurrer will he overruled.\u201d McIntosh, N. O. P. & P. 463, and eases cited. Insistence upon separate statement of each cause of action is required in order to give practical effect to the defendant\u2019s right to demur to one cause of action and answer another.\nIt may be that the demurrer here was interposed as a precautionary measure, prompted by an apprehension that the court might consider that the complaint alleged facts sufficient, if deftly separated, to constitute two or more causes of action. But in our view, only one cause of action is alleged, namely, that stated above. Plaintiff, in his brief, states that the complaint \u201ctends to prove a single, general right, one for injury to the person of the plaintiff.\u201d The elements of compensatory damages alleged are such as proximately resulted from personal injuries inflicted upon plaintiff when struck by the wrecker. There being but one cause of action, the order of the court below overruling demurrer was correct.\nUpon consideration of the motion to strike, we restrict our discussion to what appear to he the more significant allegations. The applicable rules for our guidance are summarized by Johnson, J., in Daniel v. Gardner, ante, 249, 81 S.E. 2d 660.\nPlaintiff, in paragraph IY, alleges: \u201cThat the defendant William Atkins, due to careless and reckless propensities well known to his employers and co-defendants in the careless and reckless operation of motor vehicles and particularly the careless and reckless operation of the Kirk\u2019s Sineath Motor Company wrecker, was and is known by the descriptive appellation and nickname, 'Wild Bill\u2019 Atkins.\u201d Prom that point on, throughout the complaint, plaintiff, dropping all formality and reserve, repeatedly and familiarly refers to the defendant Atkins by use of the sobriquet, \u201cWild Bill.\u201d A nickname may be appropriate or may have originated in jest. In any event, the incompetence or past recklessness of a person in respect of the operation of motor vehicles cannot be proven by evidence tending to show his nickname.\nWe recognize the principle that the owner of a motor vehicle who entrusts its operation to a person whom he knows, or by the exercise of due care should have known, to be an incompetent or reckless driver, thereby becomes liable for such person\u2019s negligence in the operation thereof; and in such case the liabiliiy of the owner is predicated upon his own negligence in entrusting the operation of the motor vehicle to such a person. 60 C.J.S. p. 1057, Motor Vehicles, sec. 431; 5 Am. Jur. 696, Automobiles, sec. 355; Bogen v. Bogen, 220 N.C. 648, 18 S.E. 2d 162; McIlroy v. Akers Motor Lines, 229 N.C. 509, 50 S.E. 2d 530. This principle is applicable only when the plaintiff undertakes to cast liability on an owner not otherwise responsible for the conduct of the driver of the vehicle. But evidence of reputation for negligence or of acts of negligence on prior unrelated occasions is not competent to show that the driver was negligent on the occasion of plaintiff\u2019s injury. Robbins v. Alexander, 219 N.C. 475, 14 S.E. 2d 425.\nParagraph IY is so phrased that the allegations thereof do not purport to state facts relevant in themselves but only by way of explanation of how the defendant Atkins, according to plaintiff\u2019s allegations, acquired the nickname of \u201cWild Bill.\u201d Apparently, the pleader\u2019s zeal to put the label of \u201cWild Bill\u201d on the defendant Atkins diverted him from alleging facts that might have been included, e.g., that the defendant Atkins, to the knowledge of his codefendants, had operated motor vehicles, including the wrecker, in a negligent and reckless manner, and that his codefendants knowingly permitted him to operate their said wrecker on the occasion referred to in the complaint. But paragraph IY must stand or fall as plaintiff has phrased it. As presently phrased, it was properly stricken from the complaint.\nHowever, we do not perceive that plaintiff has been prejudiced by the ruling, for there remains in the complaint, as subparagraph (d) of paragraph XII the allegations: \u201cThe defendants Albert T. Kirkman and L. John Kirby, trading as Kirk\u2019s Sineath Motor Company, were negligent in having and retaining in their employ William Atkins and entrusting to him the operation of their wrecker, knowing of his reckless habits and disposition in the operation of motor vehicles generally and of their wrecker in particular.\u201d\nThe allegations of the complaint are explicit to the effect that Atkins on the occasion of plaintiff\u2019s injury was acting within the scope of his employment by his codefendants and in furtherance of their business. Of course, we cannot assume that such allegations of agency will be admitted when answers are filed. If admitted, the liability of the defendant employers would rest upon respondeat superiorj and subparagraph (d) of paragraph XII would become irrelevant and prejudicial and should be stricken upon motion then made. On the other hand, if the allegations invoking respondeat superior are denied, the plaintiff should be allowed to amend his complaint so as to allege additional ultimate facts, such as indicated above, in conformity with the theory of liability set forth in subparagraph (d) of paragraph XII.\nPlaintiff, in paragraph YIII, alleges, in part: \u201cPlaintiff requested, and . . . Atkins . . . agreed, to go to a nearby filling station ... to telephone for help, the plaintiff requesting ... to call for an ambulance.\n\u201c. . . Atkins did not call for an ambulance but immediately reported . . . the occurrence to Kirk\u2019s Sineath Motor Company, . . . that, pursuant to the telephone report from . . . Atkins, the representative of . . . Kirk\u2019s Sineath Motor Company called the North Carolina State Highway Patrol and requested that they go to the scene where plaintiff lay injured.\n\u201cWithin about 15 minutes the State Patrol automobile arrived and the two men, Patrolman Boone and Patrolman Moore, were advised by the plaintiff that the wrecker had struck him and that he was seriously injured and requested that they take him to \u00a1the hospital; the information to the State Patrolman and the request that he be carried to the hospital were in the presence of . . . Atkins; the two State Patrolmen thereupon raised the plaintiff, helped him into their vehicle and started into Greensboro, North Carolina.\u201d\nThen follow extended allegations as to conversations and transactions between plaintiff and the officers, the substance being that the officers took him to the city jail in Greensboro rather than to a hospital and that he remained in jail until taken to a hospital the following morning.\nPlaintiff, in paragraph IX, alleges: \u201cPlaintiff was charged, by warrant, with public drunkenness. Plaintiff believes and alleges that the charge was instigated and, therefore, instituted by defendants. That the charge was maliciously made by the defendants and was without probable cause and for the ulterior purpose of covering up the wrongful conduct and negligent and reckless action of 'Wild Bill\u2019 Atkins in causing plaintiff\u2019s injury as hereinbefore and hereinafter alleged; that plaintiff was later tried in the Municipal-County Court of Greensboro on the charges and found not guilty.\u201d\nPlaintiff does not allege that he received any new injury on account of any of the circumstances narrated in the allegations quoted above. When stripped of allegations of evidential facts, as distinguished from ultimate facts, the allegations relevant to plaintiff\u2019s cause of action tend to show delay in receiving proper medical treatment for his injuries. To the extent that plaintiff attempts to graft on his stated cause of action allegations of complicity in relation to his arrest, imprisonment and prosecution, these are not germane to the cause of action presently before the court. If entitled to recover at all, plaintiff is entitled to recover all damages naturally and proximately caused by the injuries inflicted upon him by the defendants in the operation of the wrecker. Evidence tending to show certain circumstances in respect of where he was and in respect of his physical condition from the time he was injured until he received proper medical treatment would be competent. However, the competency of evidence, on direct and on cross-examination, cannot be determined with precision until the defendants have answered and the evidence is developed. Explanation of what occurred during the delay would throw light upon whether plaintiff received new injuries inflicted by other persons and hence bear upon the subject of proximate cause of his damages. These are evidential matters and not ultimate facts. But the liability of the defendants, if any, does not spring from these intervening events. It began and remains on the basis of consequential damages for injuries sustained by plaintiff wben struck by tbe wrecker; and if delay in receiving proper medical treatment aggravated bis injuries tbe defendants are accountable on tbe basis of damages naturally and proximately resulting from tbe tortious conduct upon wbicb tbe suit is grounded. Injuries resulting from delay in receiving proper medical treatment as well as injuries caused by unsuccessful medical treatment ordinarily tend to aggravate tbe damages for wbicb tbe wrongdoer is responsible. Lane v. R. R., 192 N.C. 287, 134 S.E. 855, 51 A.L.R. 1114; Bost v. Metcalfe, 219 N.C. 607, 14 S.E. 2d 648.\nAll of tbe elements of compensatory damages plaintiff seeks to recover are comprebended by tbe oft stated rule as to tbe measure of damages in personal injury cases based on negligence. Ledford v. Lumber Co., 183 N.C. 614, 112 S.E. 421.\nTbe allegations quoted from paragraphs IX and X are irrelevant and prejudicial and should have been stricken. If plaintiff has a cause of action for false arrest, malicious prosecution or otherwise springing from facts suggested by these allegations, be may bring an independent action therefor. In this action, tbe allegations tend only to divert attention from tbe real issues and generally to confuse rather than clarify tbe issues and trial.\nTbe appeal does not present tbe question as to tbe sufficiency of tbe allegations to warrant submission of an issue of punitive damages. Suffice it to say, decision of this question depends upon tbe circumstances giving rise to tbe alleged cause of action and not upon what occurred subsequent to tbe infliction of tbe personal injuries.\nTbe result is: Upon plaintiff\u2019s appeal: Tbe portion of tbe order of tbe court below striking allegations from tbe complaint is affirmed. Upon defendants\u2019 appeal: Tbe order of tbe court below overruling defendants\u2019 demurrer is affirmed. Tbe part of tbe order of tbe court below denying defendants\u2019 motion to strike is reversed and tbe challenged allegations are stricken, except as to subparagraph (d) of paragraph XII; and in respect to said subparagraph (d) tbe order of tbe court below is affirmed.\nPlaintiff\u2019s appeal: Affirmed.\nDefendants\u2019 appeal: Affirmed in part, reversed in part.", "type": "majority", "author": "Eobbitt, J." } ], "attorneys": [ "Sines <& Boren and Smith, Sapp, Moore & Smith for plaintiff, appellee and appellant.", "Jordan \u25a0& Wright for defendants, appellants and appellees." ], "corrections": "", "head_matter": "WESLEY G. HEATH v. ALBERT T. KIRKMAN and L. JOHN KIRBY, t/a KIRK\u2019S SINEATH MOTOR COMPANY, and WILLIAM ATKINS.\n(Filed 19 May, 1954.)\n1. Pleadings \u00a7 19b\u2014\nIf two or more causes of action are compounded in the complaint and not separately stated, demurrer should be sustained. G.S. 1-123, G.S. 1-127, Rule of Practice in the Supreme Court, No. 20 (2).\n2. Same\u2014\nIn this action to recover for personal injuries resulting from negligence, plaintiff alleged, in addition to the facts relied on as constituting the action for negligence, facts tending to show false arrest and malicious prosecution as bearing on the issue of damages, but demanded no separate recovery therefor, Held: The complaint states but a single cause of action and the intimations of additional causes of action will .be treated as mere embellishments and not germane to the cause of action stated, and therefore demurrer for misjoinder of causes is properly overruled.\n3. Negligence \u00a7 16: Pleadings \u00a7 30\u2014\nIn this action to recover for negligent injury, allegations referring to the defendant driver of the vehicle by the nickname of \u201cWild Bill\u201d and allegations by way of explanation as to how the driver acquired the nickname, unrelated to any allegations that defendant employers had knowledge that the driver customarily operated vehicles in a negligent manner and that .they knowingly permitted him to operate the vehicle in question on the occasion referred to, were properly stricken upon motion.\n4. Automobiles \u00a7 23b\u2014\nThe owner of a motor vehicle who entrusts its operation to a person whom he knows, or by the exercise of due care should have known, to be an incompetent or reckless driver, is liable for such person\u2019s negligent operation of the vehicle upon the principle that the owner is negligent in entrusting its operation to such person.\n5. Same: Negligence \u00a7 16: Pleadings \u00a7 30\u2014\nWhere plaintiff alleges liability under the doctrine of respondeat superior, and also alleges liability on the principle that defendant employers were negligent in permitting a person to drive their vehicle who was known by them to be an incompetent and reckless driver, the allegations as to the known recklessness of the driver are relevant if the allegations relating to respondeat superior are denied, and such allegations will not be stricken upon motion prior to the filing of an answer, since upon such motion the court will not attempt to chart the course of the trial.\n6. Damages \u00a7 6\u2014\nA person who has been injured by the negligent act of another is entitled to recover all damages naturally and proximately resulting from the negligent act in suit, including, ordinarily, injuries resulting from delay in receiving proper medical treatment as well as injuries caused by unsuccessful medical treatment which tend to aggravate the damages for which the wrongdoer is responsible.\n7. Same: Negligence \u00a7 16: Pleadings \u00a7 30\u2014\nIn an action to recover for negligent injury, allegations tending to show circumstances in respect to where the injured plaintiff was, and in respect .to his physical condition from the time of his injury until the time he received proper medical treatment, may be competent for the purpose of \u25a0establishing damages resulting from delay in receiving proper medical attention, but allegations tending to establish false arrest or malicious prosecution instigated by defendants, resulting in plaintiff being taken to jail after injury, should be stricken on motion as irrelevant to the cause of action for negligent injury.\n8. Same: Damages \u00a7 7\u2014\nPunitive damages for personal injury depend upon the circumstances under which the injury was inflicted and not upon occurrences subsequent thereto, and therefore allegations relating to false arrest and malicious prosecution subsequent to the infliction of the injury cannot be germane to the issue of punitive damages.\nCross-appeals by plaintiff and by defendants from Clarkson, J., 1 March, 1954, Civil Term, of Guileord.\nCivil action to recover damages for personal injuries.\nThe gist of the allegations of the complaint may be stated as follows:\n1. Defendants Kirkman and Kirby, partners trading as Kirk\u2019s Sineatb Motor Company, owned and used as part of tbeir business equipment a motor vehicle described as a wrecker, which was operated by their employee, defendant Atkins, when answering service calls.\n2. On 12 December, 1952, about 10:30 P.M., plaintiff, who was unable to start his automobile, telephoned Kirk\u2019s Sineath Motor Company, requesting that they send someone to help him start his car, advising that he would be waiting at a designated service station.\n3. In response to plaintiff\u2019s request, defendant Atkins \u201cwas sent\u201d out, operating the wrecker, to aid plaintiff; and he so operated the wrecker as employee of his eodefendants within the scope of his employment and in furtherance of his employers\u2019 business.\n4. Plaintiff was standing near the front of the designated service station, plainly visible to defendant Atkins as he approached and turned into the service station \u201cin a normal, ordinary manner\u201d; and \u201cwhile plaintiff remained standing where he was, the driver of the wrecker . . . suddenly and without warning to the plaintiff and at a time when the front of the wrecker was so close to the plaintiff that it was impossible for the plaintiff to move and avoid being struck, carelessly, negligently and recklessly turned the wrecker toward the plaintiff, struck him and knocked him down, severely injuring him . .\n5. As the proximate result of the wrongful conduct of defendants, plaintiff is entitled to recover compensatory damages in the amount of $146,155.70 and punitive damages in the amount of $10,000.00 The compensatory damages consist of medical, hospital, etc., bills and expenses of $4,830.70; loss of earnings of $3,825.00; prospective loss of earnings of $62,500.00; and pain and suffering, past, present and prospective, of $75,000.00.\nOther allegations of the complaint will be set forth in the opinion.\nDefendant, within the statutory time, moved to strike designated allegations of the complaint. Thereafter, also within the statutory time, defendants demurred to the complaint, specifying as ground for demurrer a misjoinder of parties and of causes of action and also a misjoinder of causes of action. The court below overruled the demurrer. Defendants excepted. The court below allowed the motion to strike in part and denied it in part. Plaintiff and defendants excepted to each adverse ruling.\nFrom the orders of the court below, implementing these rulings, both plaintiff and defendants appealed, assigning errors.\nSines <& Boren and Smith, Sapp, Moore & Smith for plaintiff, appellee and appellant.\nJordan \u25a0& Wright for defendants, appellants and appellees." }, "file_name": "0303-01", "first_page_order": 347, "last_page_order": 354 }