{ "id": 8623995, "name": "HUGH E. LEWIS v. MARVIN LEE", "name_abbreviation": "Lewis v. Lee", "decision_date": "1957-04-10", "docket_number": "", "first_page": "68", "last_page": "73", "citations": [ { "type": "official", "cite": "246 N.C. 68" } ], "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": "87 S.E. 2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 145", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611073 ], "opinion_index": 0, "case_paths": [ "/nc/242/0145-01" ] }, { "cite": "35 S.E. 2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "225 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610787 ], "opinion_index": 0, "case_paths": [ "/nc/225/0444-01" ] }, { "cite": "80 S.E. 2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "239 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627410 ], "opinion_index": 0, "case_paths": [ "/nc/239/0487-01" ] }, { "cite": "192 S.E. 108", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629004 ], "opinion_index": 0, "case_paths": [ "/nc/211/0725-01" ] }, { "cite": "1 S.E. 2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "215 N.C. 105", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628345 ], "opinion_index": 0, "case_paths": [ "/nc/215/0105-01" ] }, { "cite": "74 S.E. 2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 714", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627558 ], "opinion_index": 0, "case_paths": [ "/nc/236/0714-01" ] }, { "cite": "74 S.E. 2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "237 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610740 ], "opinion_index": 0, "case_paths": [ "/nc/237/0313-01" ] }, { "cite": "142 S.E. 761", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "195 N.C. 517", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630533 ], "opinion_index": 0, "case_paths": [ "/nc/195/0517-01" ] }, { "cite": "227 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625637 ], "opinion_index": 1, "case_paths": [ "/nc/227/0412-01" ] }, { "cite": "225 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610787 ], "opinion_index": 1, "case_paths": [ "/nc/225/0444-01" ] }, { "cite": "239 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627410 ], "opinion_index": 1, "case_paths": [ "/nc/239/0487-01" ] } ], "analysis": { "cardinality": 636, "char_count": 12930, "ocr_confidence": 0.568, "pagerank": { "raw": 1.091658584781325e-07, "percentile": 0.5657671547646214 }, "sha256": "61d229a7ad85e56f063b6448c9f305b64dd159d88fbede287ef48510ae2d1725", "simhash": "1:ba66de69e69ed03a", "word_count": 2207 }, "last_updated": "2023-07-14T21:30:34.544387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Bobbitt, J., concurs in dissent." ], "parties": [ "HUGH E. LEWIS v. MARVIN LEE." ], "opinions": [ { "text": "Winborne, C. J.\nDefendant appellant renews in this Court his demurrer ore tenus to the complaint of the plaintiff. It, like the demurrers filed in Superior Court, was upon the ground that the complaint does not state facts sufficient to constitute a cause of action against the defendant for actionable negligence.\nFor this purpose the truth of the allegations contained in the complaint is admitted, and \u201cordinarily relevant inferences of fact necessarily deducible therefrom are also admitted. But the principle does not extend to admissions of conclusions or inferences of law.\u201d Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761. See among many other cases Hollifield v. Everhart, 237 N.C. 313, 74 S.E. 2d 706; McLaney v. Motor Freight, Inc., 236 N.C. 714, 74 S.E. 2d 36, and cases cited.\nAlso it is provided by statute, G.S. 1-151, that \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 And the decisions of this Court interpreting and applying the provisions of this statute require that every reasonable intendment must be in favor of the pleader. The pleading must be fatally defective before it will be rejected as insufficient. See Ins. Co. v. McCraw, 215 N.C. 105, 1 S.E. 2d 369, and cases there cited.\nIn the light of the provisions of the statute, as so interpreted and applied, admitting the truth of the facts alleged in the complaint, this Court is constrained to conclude as a matter of law that the allegations in respect to defendant are fatally defective upon the ground on which the demurrers are predicated, that is, it affirmatively appears upon the face of the complaint that the injury of which plaintiff complains was, as stated by Stacy, C. J., in Smith v. Sink, 211 N.C. 725, 192 S.E. 108, \u201cindependently and proximately produced by the wrongful act, neglect, or default of an outside agency or responsible third person,\u201d to wit, Dock Richardson. See McLaney v. Motor Freight Inc., supra, and cases cited.\nThe facts alleged show that defendant was traveling at a speed of 35 miles per hour, when the car driven by Dock Richardson suddenly appeared in front of defendant on defendant\u2019s right side of the road. Under such circumstances, as contended by appellant in brief filed in this Court, defendant was \u201cconfronted with the choice of meeting the Richardson car head-on or turning to his left in the hope of avoiding a head-on collision.\u201d Compare Henderson v. Henderson, 239 N.C. 487, 80 S.E. 2d 383. Indeed the allegations present a factual \u25a0 situation similar to that in Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E. 2d 337, where Barnhill, C. J., writing for the Court declared: \u201cThat the bus driver, when he saw the automobile enter the highway just ahead of him, cut his bus to the left and crossed the center line cannot, under the circumstances of this case, be held an act of negligence. It is a human instinct when a collision is impending between two vehicles to turn or cut away from the other vehicle. The evidence here discloses that it was done in an effort to avoid the collision. There is no circumstance tending to show that it was other than what a man of reasonable prudence would have done.\u201d\nWhile it is true that it is set forth in the complaint that the defendant was in the act of turning in his driveway at the time of the collision, and had carelessly, negligently and without proper lookout and due caution driven over on the wrong side of the road causing and bringing about the collision and damages of which complaint is made, this is no more than a conclusion of the pleader and is negatived by the facts alleged immediately prior thereto in the same paragraph. The two allegations cannot be reconciled. This brings the case within the principle set forth in Lindley v. Yeatman, 242 N.C. 145, 87 S.E. 2d 5, that is, that \u201cWhere in stating a single cause of action the complaint alleges two repugnant statements of fact, the repugnant allegations destroy and neutralize each other, and where, with the repugnant allegations thus eliminated, the remaining averments are insufficient to state a cause of action, demurrer will lie.\u201d See McIntosh, N. C. Practice & Procedure, Section 353; 21 Am. Jur., Pleading, Section 221.\nHence for error in overruling demurrers ore tenue the judgment from which appeal is taken is\nReversed.", "type": "majority", "author": "Winborne, C. J." }, { "text": "Rodman, J.,\ndissenting: I dissent from the opinion of the majority, not because of any disagreement as to legal principles, but because I think the language of the complaint describing the factual situation and defendant\u2019s conduct is sufficiently broad, even though lacking in details, to authorize recovery when interpreted in the light of plaintiff\u2019s testimony describing the situation under which the collision occurred. He testified: \u201cWe were coming down the road and just before we got to Marvin Lee\u2019s avenue, which was on our right side that we were on, I looked up and I saw a car coming around the bend up there by the tobacco barns on the Tucker farm and when he come around the curve he was on our side of the road. He was between 250 and 300 yards, probably 400, from us at that time. He stayed' on our side of the road a right good while. I would say the car coming towards us got within 35 or 40 yards when he turned into his side of the road.\u201d Again he testified: \u201cWhen we were about 35 to 45 yards apart, Richardson swerved across the road a little bit. He looked like he might have looked up and saw us. He won\u2019t directly on our side, but he was straddling the center line when he went across to his proper side. He got on his side fully 45 yards from us; he was on his side then. ... I don\u2019t say that Lee cut to his left when he was about 35 or 45 yards from Richardson to keep from having a wreck. I told you before that there was room on that dirt on Lee\u2019s side that he could have got off on his side. There\u2019s six feet of flat land there . . .\u201d\nThe Court treats the allegation of the complaint that Dock Richardson suddenly appeared on the wrong side of the road as having only one meaning: that he suddenly appeared in such close proximity as to create an emergency for which defendant was not responsible. I concede that it might have that meaning, but I think that it may as well describe the condition depicted by plaintiff, viz., that the vehicles were 250 to 400 yards apart when Dock Richardson turned the corner or curve on the wrong side of the road. Such a situation bears no resemblance to the factual situation described in Henderson v. Henderson, 239 N.C. 487, nor in Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, relied upon by the majority to sustain their position. Defendant did not object to plaintiff\u2019s testimony describing the situation. The facts related do not, as a matter of law, in my opinion, portray a sudden emergency created without fault of defendant. Plaintiff could not, of course, allege one cause of action and recover on a different factual situation. The probata must correspond to the allegata. Hence, it seems to me, that the interpretation placed on the pleadings at the trial by plaintiff, by defendant, and by the court that the facts alleged accorded with the testimony ought now to be accepted by this Court as a correct interpretation of what the plaintiff intended to say when he filed his complaint. If it was lacking in detail, defendant\u2019s remedy was by motion to make it more specific and certain.\nI think the pleadings suffice to permit the plaintiff to offer evidence. I think there is evidence on which the jury could find in favor of the plaintiff. Hoke v. Greyhound Corporation, 227 N.C. 412. No exception was taken to the charge of the court. It is my opinion defendant has not demonstrated error.\nBobbitt, J., concurs in dissent.", "type": "dissent", "author": "Rodman, J.," } ], "attorneys": [ "T. A. Burgess and Davenport & Davenport for Plaintiff Appellee.", "Valentine & Valentine and Broughton & Broughton for Defendant Appellant." ], "corrections": "", "head_matter": "HUGH E. LEWIS v. MARVIN LEE.\n(Filed 10 April, 1957.)\n1. Pleadings \u00a7 15\u2014\nA demurrer admits .the truth of the facts .properly alleged, and relevant inferences of fact necessarily deducible therefrom, but it does not admit inferences or conclusions of law.\n2. Same\u2014\nUpon demurrer, the complaint must be liberally construed with a view to substantial justice, giving the pleader the advantage of every reasonable .intendment therefrom, and the pleading must be fatally defective before it will be rejected. G.S. 1-151.\n3. Automobiles \u00a7\u00a7 15, 35 \u2014 ;\nA complaint alleging that defendant, the driver of the car in which plaintiff was riding as a passenger, was suddenly confronted by a car approaching- from the opposite direction on its left of the highway, that defendant pulled to his left of the highway and .that the operator of the other car pulled back to his right and collided with defendant on defendant's left of the road, held insufficient to state a cause of action, since defendant\u2019s act in pulling to the left when confronted by the emergency cannot be held an act of negligence under the circumstances, and 'the facts alleged show that the collision was independently and proximately produced by the wrongful act of the driver of the other ear.\n4. Automobiles \u00a7 35\u2014\nWhere the complaint alleges in effect that defendant drove to his left of the highway in order to avoid collision with a vehicle suddenly appearing and approaching from the opposite direction on its left side of the highway, and then alleges that defendant drove -to his left without due caution and without keeping a proper lookout and in maneuvering his vehicle to turn right into his driveway, .the repugnant allegations destroy and neutralize each other, and the remaining allegations are insufficient to show negligence on the part of defendant.\n5. Pleadings \u00a7 19c\u2014\nWhere in stating a single cause of action the complaint alleges two repugnant statements of fact, the repugnant allegations destroy and neutralize each other, and where, with the repugnant allegations thus eliminated, the remaining averments are insufficient to state a cause of action, demurrer will lie.\nHodman, J., dissenting.\nBobbitt, J., concurs in dissent.\nAppeal by defendant from Moore, Clifton L., J., at October-November 1956 Civil Term, of Nash.\nCivil action to recover for personal injuries allegedly proximately caused by negligence of defendant.\nIt is admitted in the pleadings that on 18 December, 1955, plaintiff was riding as a guest in an automobile owned and operated by defendant Marvin Lee at or about 11:30 a.m., on a rural paved highway leading from Red Oak to Reed\u2019s Store in Nash County.\nAnd plaintiff alleges in paragraph 3 of his complaint that \u201cdefendant was driving his automobile in a northerly direction at approximately 35 miles per hour and about one mile from Reed\u2019s Store and almost in front of defendant\u2019s home, when suddenly Dock Richardson, operating an automobile, appeared on the highway in front of the defendant driving in the opposite direction, that is, meeting the defendant and on the wrong side of the road.\u201d That \u201cthe defendant pulled over beyond the center of the road and to his left-hand side of the road and the automobile being operated by Dock Richardson pulled back to its right and met the defendant Marvin Lee on Lee\u2019s wrong side of the road.\u201d That \u201cLee was in the act of turning in his driveway at the time of the collision and had carelessly, negligently and without proper lookout and due caution drove over on the wrong side of the road causing and bringing about the collision and damages . . . complained of.\u201d And in paragraph 7 of the complaint plaintiff alleges \u201cthat the negligence of the defendant, Marvin Lee, in driving his automobile on the wrong side of the road as hereinabove alleged, was one of the proximate causes of plaintiff\u2019s injuries and damage.\u201d\nDefendant, answering, denies that he was negligent as alleged in the complaint, and for a further answer and in bar of plaintiff\u2019s right to recover in this action, defendant pleaded assumption of risk; and as the sole and proximate cause of collision negligence of Richardson.\nUpon the trial in Superior Court plaintiff was the only witness in respect to the collision.\nAt the close of plaintiff\u2019s evidence defendant (1) demurred ore tenus to plaintiff\u2019s complaint, and (2) moved for judgment as of nonsuit. Both motions were overruled, and defendant excepted to each ruling.\nDefendant then announced that he would offer no evidence, and renewed (1) his demurrer ore tenus to plaintiff\u2019s complaint and (2) his motion, at the close of all the evidence, for judgment as of nonsuit. Both motions were overruled, and defendant excepted to each ruling.\nThe case was submitted to the jury on two issues, shown in the record, which the jury answered in favor of plaintiff as indicated.\nFrom judgment signed in accordance with the verdict, defendant appeals to Supreme Court, and assigns error.\nT. A. Burgess and Davenport & Davenport for Plaintiff Appellee.\nValentine & Valentine and Broughton & Broughton for Defendant Appellant." }, "file_name": "0068-01", "first_page_order": 118, "last_page_order": 123 }