{ "id": 8561932, "name": "JIMMY RAY SUTTON v. MARVIN DUKE, KINSTON FERTILIZER COMPANY, and SEABOARD COAST LINE RAILROAD COMPANY", "name_abbreviation": "Sutton v. Duke", "decision_date": "1970-08-28", "docket_number": "No. 40", "first_page": "94", "last_page": "109", "citations": [ { "type": "official", "cite": "277 N.C. 94" } ], "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": "7 N.C. App. 100", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548330 ], "opinion_index": -1, "case_paths": [ "/nc-app/7/0100-01" ] }, { "cite": "372 F. 2d 626", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2043506 ], "year": 1967, "pin_cites": [ { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/f2d/372/0626-01" ] }, { "cite": "34 Minn. L. Rev. 185", "category": "journals:journal", "reporter": "Minn. L. Rev.", "year": 1950, "opinion_index": 0 }, { "cite": "76 S.E. 2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "238 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600156 ], "opinion_index": 0, "case_paths": [ "/nc/238/0106-01" ] }, { "cite": "199 S.E. 403", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "214 N.C. 388", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630873 ], "opinion_index": 0, "case_paths": [ "/nc/214/0388-01" ] }, { "cite": "200 S.E. 363", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "214 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632371 ], "opinion_index": 0, "case_paths": [ "/nc/214/0624-01" ] }, { "cite": "143 S.E. 861", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "195 N.C. 788", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632141 ], "opinion_index": 0, "case_paths": [ "/nc/195/0788-01" ] }, { "cite": "37 N.C.L. Rev. 371", "category": "journals:journal", "reporter": "N.C. L. Rev.", "pin_cites": [ { "page": "459" } ], "opinion_index": 0 }, { "cite": "39 N.C.L. Rev. 323", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1961, "pin_cites": [ { "page": "395" } ], "opinion_index": 0 }, { "cite": "101 S.E. 2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "247 N.C. 471", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627440 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/247/0471-01" ] }, { "cite": "149 S.E. 2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "268 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560126 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/268/0062-01" ] }, { "cite": "103 S.E. 2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "248 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624551 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/248/0506-01" ] }, { "cite": "67 S.E. 2d 63", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "234 N.C. 206", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620796 ], "opinion_index": 0, "case_paths": [ "/nc/234/0206-01" ] }, { "cite": "91 S.E. 2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 525", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626028 ], "opinion_index": 0, "case_paths": [ "/nc/243/0525-01" ] }, { "cite": "112 S.E. 2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "251 N.C. 751", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627434 ], "opinion_index": 0, "case_paths": [ "/nc/251/0751-01" ] }, { "cite": "151 S.E. 2d 641", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "268 N.C. 605", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564336 ], "opinion_index": 0, "case_paths": [ "/nc/268/0605-01" ] }, { "cite": "106 S.E. 2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "249 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616429 ], "opinion_index": 0, "case_paths": [ "/nc/249/0415-01" ] }, { "cite": "153 S.E. 2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "269 N.C. 622", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565253 ], "opinion_index": 0, "case_paths": [ "/nc/269/0622-01" ] }, { "cite": "131 S.E. 2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "259 N.C. 638", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561781 ], "opinion_index": 0, "case_paths": [ "/nc/259/0638-01" ] }, { "cite": "100 S.E. 2d 860", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626848 ], "opinion_index": 0, "case_paths": [ "/nc/247/0286-01" ] }, { "cite": "109 S.E. 2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "250 N.C. 456", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624343 ], "opinion_index": 0, "case_paths": [ "/nc/250/0456-01" ] }, { "cite": "118 S.E. 2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "254 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625652 ], "opinion_index": 0, "case_paths": [ "/nc/254/0240-01" ] }, { "cite": "124 S.E. 2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "256 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573318 ], "opinion_index": 0, "case_paths": [ "/nc/256/0465-01" ] }, { "cite": "280 N.Y.S. 2d 623", "category": "reporters:state", "reporter": "N.Y.S.2d", "pin_cites": [ { "page": "624" } ], "opinion_index": 0 }, { "cite": "248 N.Y.S. 2d 121", "category": "reporters:state", "reporter": "N.Y.S.2d", "weight": 2, "year": 1964, "pin_cites": [ { "page": "125" } ], "opinion_index": 0 }, { "cite": "41 Misc. 2d 894", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1134533 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/misc2d/41/0894-01" ] }, { "cite": "246 N.Y.S. 2d 670", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1964, "opinion_index": 0 }, { "cite": "313 F. 2d 445", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 182156 ], "weight": 3, "pin_cites": [ { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/f2d/313/0445-01" ] }, { "cite": "294 F. 2d 676", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 215545 ], "year": 1961, "pin_cites": [ { "parenthetical": "in action for wrongful termination, attached contract showed absolute right to terminate" } ], "opinion_index": 0, "case_paths": [ "/f2d/294/0676-01" ] }, { "cite": "109 F. 2d 493", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1038527 ], "year": 1940, "pin_cites": [ { "parenthetical": "plaintiff without capacity to maintain the suit" } ], "opinion_index": 0, "case_paths": [ "/f2d/109/0493-01" ] }, { "cite": "403 F. 2d 533", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2129406 ], "year": 1968, "pin_cites": [ { "parenthetical": "insurance policy attached to complaint showed noncoverage" } ], "opinion_index": 0, "case_paths": [ "/f2d/403/0533-01" ] }, { "cite": "178 F. 2d 436", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1162376 ], "year": 1949, "pin_cites": [ { "parenthetical": "probable cause shown in malicious prosecution complaint" } ], "opinion_index": 0, "case_paths": [ "/f2d/178/0436-01" ] }, { "cite": "310 F. 2d 693", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 193662 ], "year": 1962, "pin_cites": [ { "parenthetical": "absolute privilege in defamation" } ], "opinion_index": 0, "case_paths": [ "/f2d/310/0693-01" ] }, { "cite": "206 F. Supp. 32", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 1463741 ], "year": 1962, "pin_cites": [ { "parenthetical": "complaint revealed action barred by statute of limitations" } ], "opinion_index": 0, "case_paths": [ "/f-supp/206/0032-01" ] }, { "cite": "278 F. Supp. 717", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5338819 ], "opinion_index": 0, "case_paths": [ "/f-supp/278/0717-01" ] }, { "cite": "128 F. 2d 378", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10699854 ], "year": 1941, "opinion_index": 0, "case_paths": [ "/f2d/128/0378-01" ] }, { "cite": "355 U.S. 41", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6161830 ], "weight": 4, "pin_cites": [ { "page": "78" }, { "page": "47-48" }, { "page": "45-46" } ], "opinion_index": 0, "case_paths": [ "/us/355/0041-01" ] }, { "cite": "N.Y. Civ. Prac. Law \u00a7 3013", "category": "laws:leg_act", "reporter": "N.Y.", "pin_cites": [ { "parenthetical": "McKinney, 1969-70 Supplement, Book 7B" } ], "opinion_index": 0 }, { "cite": "107 S.E. 2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "628" } ], "opinion_index": 0 }, { "cite": "249 N.C. 706", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621351 ], "pin_cites": [ { "page": "709" } ], "opinion_index": 0, "case_paths": [ "/nc/249/0706-01" ] }, { "cite": "48 N.C.L. Rev. 636", "category": "journals:journal", "reporter": "N.C. L. Rev.", "weight": 3, "year": 1970, "pin_cites": [ { "page": "638, n. 15" }, { "page": "640" } ], "opinion_index": 0 }, { "cite": "179 F. 2d 446", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1255898 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/f2d/179/0446-01" ] } ], "analysis": { "cardinality": 1451, "char_count": 38153, "ocr_confidence": 0.563, "pagerank": { "raw": 6.59573229366267e-06, "percentile": 0.9992306501267062 }, "sha256": "d5fb99fbbbbea864d8ac7d125e23bc0191f09fe1ae25cde430ceed89ad5033d5", "simhash": "1:33c3546d03efbcfb", "word_count": 6475 }, "last_updated": "2023-07-14T17:02:40.568981+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JIMMY RAY SUTTON v. MARVIN DUKE, KINSTON FERTILIZER COMPANY, and SEABOARD COAST LINE RAILROAD COMPANY" ], "opinions": [ { "text": "Sharp, J.\nThe demurrer in this case was interposed under G.S. 1-127 (6). This section was repealed by N. C. Sess. L. ch. 954, \u00a7 4 (1967), which enacted the new North Carolina Rules of Civil Procedure (NCRCP). These rules became effective 1 January 1970 and were made applicable \u201cto actions and proceedings pending on that date as well as to actions and proceedings commenced on and after that date.\u201d N.C. Sess. L. ch. 803 (1969). The decision of the Court of Appeals, which reversed the trial court\u2019s judgment sustaining the demurrer and dismissing the action, was filed 31 December 1969. Thus, this appeal was caught in limine by Rule 7 (c) which says, \u201cDemurrers, pleas and exceptions for insufficiency shall not be used.\u201d\nWhen, however, a pleader has failed \u201cto state a claim upon which relief can be granted,\u201d his adversary is now permitted by Rule 12(b) (6) to assert that defense either in a responsive pleading or by motion to dismiss.\nN.C.R. Civ. P. 12(b) is essentially a verbatim copy of Rule 12(b) of the Federal Rules of Civil Procedure (FRCP). In 2A Moore\u2019s Federal Practice \u00a7 12.08 (2d ed. 1968) (hereinafter referred to as Moore) it is said: \u201cThe motion to dismiss under Rule 12(b) (6) performs substantially the same function as the old common law general demurrer. A motion to dismiss is the usual and proper method of testing the legal sufficiency of the complaint. For the purpose of the motion, the well-pleaded material allegations of the complaint are taken as admitted; but conclusions of law or unwarranted deductions of fact are not admitted.\u201d The question as to what should be done with demurrers arose immediately after the federal rules went into effect, and the cases dealing with the problem generally treated the demurrer as a motion to dismiss under Federal Rule 12(b) (6). 2 Moore \u00a7 7.06. \u201cA motion to dismiss \u2018for failure to state a claim upon which relief can be granted\u2019 is the modern equivalent of a demurrer. Rule 12(b), Federal Rules of Civil Procedure as amended and the Note thereto.\u201d United Transport Serv. v. National Mediation Board, 179 F. 2d 446 (D.C. Cir. 1948).\nAccordingly we treat the demurrer in this case as a motion to dismiss under our Rule 12(b) (6) and consider whether plaintiff has stated in his complaint \u201ca claim upon which relief can be granted.\u201d Our general directive is Rule 8(a) (1), which requires that any \u201cpleading which sets forth a claim for relief . . . shall contain (1) A short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to he proved showing that the pleader is entitled to relief, and (2) A demand for judgment for the relief to which he deems himself entitled. . . .\u201d (Emphasis added) This rule replaces G.S. 1-122 (repealed 1 January 1970), which provided that \u201cthe complaint must contain ... a plain and concise statement of the facts constituting a cause of action. . . .\u201d\nThe North Carolina Rules of Civil Procedure are modeled after the federal rules. 48 N.C.L. Rev. 636 (1970). In most instances they are verbatim copies with the same enumerations. Sizemore, 5 Wake Forest Intra. L. Rev. 1 (1969). However, our Rule 8(a) (1) differs from corresponding Federal Rule 8(a) (2) in that the latter requires only \u201ca short and plain statement of the claim showing that the pleader is entitled to relief.\u201d To the federal rule the legislature added the italicized portion of the preceding quotation of our Rule 8 (a), and those words constitute the difference in the two rules. There are also material differences between illustrative Federal Forms 9 and 10 and North Carolina illustrative Forms 3 and 4. These forms each state a claim for damages for personal injuries resulting from a collision between an automobile and a pedestrian. North Carolina Forms 3 and 4 contain allegations of the specific acts constituting defendant\u2019s negligence. Federal Forms 9 and 10 contain no such specificity; they merely allege that at a designated time and place \u201cdefendant negligently drove a motor vehicle against plaintiff who was then crossing said highway.\u201d N.C.R. Civ. P. 84 declares that Forms 3 and 4 and all the other forms of complaint incorporated therein are \u201csufficient under these rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate.\u201d This language is identical to that of Federal Rule 84.\nThe italicized portion of our Rule 8(a) (1) (not included in Federal Rule 8 (a) (2)) was probably taken from the New York\u2019s Civil Practice Law and Rules \u00a7 3013 (CPLR) (McKinney\u2019s Consolidated Laws of N. Y., Book 7B \u00a7 3013). See 48 N.C.L. Rev. 636, 638, n. 15. Section 3013 says: \u201cStatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and the material elements of each cause of action or defense\u201d (Italics ours.) The preceding words in italics were omitted from our Rule 8(a) (1) and constitute the difference between it and New York Rule 3013.\nBy repealing G.S. 1-122, which required a complaint to state \u201cthe facts constituting a cause of action,\u201d and substituting in lieu thereof the requirement that a \u201cclaim for relief\u201d shall be stated with sufficient particularity to give notice of the events intended to be proved showing that the pleader is entitled to relief, the legislature obviously intended to change our prior law. We do not assume its choice of \u201cnew semantics\u201d was either accidental or casual. Considering the inspiration, origin, and legislative history of the NCRCP and the absence from it of the words \u201cfacts\u201d and the phrase \u201cfacts constituting a cause of action\u201d we conclude that the legislature intended to relax somewhat the strict requirements of detailed fact pleading and to adopt the concept of \u201cnotice pleading.\u201d However, the additional requirements in our Rule 8(a) (1) manifest the legislative intent to require a more specific statement, or notice in more detail, than Federal Rule 8 (a) (2) requires.\nIn 5 Wake Forest Intra. L. Rev. 1, 15, Professor James E. Sizemore says that \u201c[t]he North Carolina requirement was the result of compromise between the drafting committee and practicing lawyers on the General Statutes Commission who wanted more specificity, especially in automobile cases, than Federal Form 9 requires. The result is that under the directive of our Rule 8(a) (1) a complaint need not be as specific as under the former practice, but it must be \u201cto some degree more specific than the federal complaint. The added degree of specificity is not readily determinable from the language of the rule itself.\u201d 48 N.C.L. Eev. 686, 637.\nAs previously noted, the only appreciable difference between our Eule 8(a) (1) and New York\u2019s CPLE \u00a7 8018 is the latter\u2019s additional requirement that the statement of claim shall also give notice of \u201cthe material elements of each cause of action or defense.\u201d The addition provides no basis for an argument that our rule requires greater specificity in pleading than CPLE \u00a7 3013. 48 N.C.L. Eev. 636, 639. No doubt the draftsmen omitted the \u201cmaterial elements\u201d requirement from our rule in an effort to discourage a judicial construction of Eule 8(a) (1) which would retain the former rule that the cause of action consists of facts alleged. Skipper v. Cheatham, 249 N.C. 706, 709, 107 S.E. 2d 625, 628. In contrast to \u00a7 3013 neither the North Carolina nor federal rules incorporate the phrase \u201ccause of action.\u201d However, in the manner of their use, we can perceive no substantial difference in the meaning of \u201ccause of action\u201d and \u201cclaim for relief.\u201d We agree with Siegel, the author of Practice Commentary, CPLE, \u00a7 3013 that \u201cthe use of the \u2018claim for relief\u2019 phrase in the federal rules was not a rejection of \u2018cause of action\u2019 as such,\u201d but rather a rejection of pleading technicalities identified with \u201ccause of action\u201d (technicalities such as \u201cevidence\u201d or \u201cultimate facts,\u201d \u201cconclusions\u201d or \u201cfacts sufficient to constitute a cause of action\u201d). N.Y. Civ. Prac. Law \u00a7 3013 (McKinney, 1969-70 Supplement, Book 7B).\nThe variant language in the North Carolina, New York, and federal rules prevents the assumption that the legislature adopted our Eule 8(a) (1) with the judicial construction which had been placed upon either the New York or the federal counterpart. All changes in words and phrasing in a statute adopted from another state or country will be presumed deliberately made with the purpose to limit, qualify, or enlarge the adopted rule. 82 C.J.S. Statutes \u00a7 371, (1953). This is not to say, however, that the \u201csizable body of case law\u201d which the FECP and New York\u2019s CPLE have produced should be ignored. On the contrary, since the federal and, presumably, the New York rules are the source of NCECP, we will look to the decisions of those jurisdictions for enlightenment and guidance as we develop \u201cthe philosophy of the new rules.\u201d\nThe attempts of the federal court to state the scope and philosophy of their rules was summarized by Mr. Justice Black in Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78, S. Ct. 99, the case most frequently cited and quoted on the point we consider here. Speaking for a unanimous Court, he said: \u201c. . . [T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is \u2018a short and plain statement of the claim\u2019 that will give the defendant fair notice of what the plaintiff\u2019s claim is and the grounds upon which it rests. The illustrative forms appended to the Rules plainly demonstrate this. Such simplified \u2018notice pleading\u2019 is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues.\u201d Id. at 47-48. Thus, under the federal rules \u201ca case consists not in the pleadings, but in the evidence, for which the pleadings furnish the basis.\u201d DeLoach v. Crowley, Inc., 128 F. 2d 378 (5th Cir. 1941).\nUnder the \u201cnotice theory of pleading\u201d a statement of claim is adequate if it gives sufficient notice of the claim asserted \u201cto enable the adverse party to answer and prepare for trial, to allow for the application of the doctrine of res judicata, and to show the type of case brought. . . .\u201d Moore \u00a7 8.13. \u201cMere vagueness or lack of detail is not ground for a motion to dismiss.\u201d Such a deficiency \u201cshould be attacked by a motion for a more definite statement.\u201d Moore \u00a7 12.08 and cases cited therein.\nIn further appraising the sufficiency of a complaint Mr. Justice Black said, in Conley v. Gibson, supra at 45-46, \u201c[W]e follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.\u201d \u201cThis rule,\u201d said the Court in American Dairy Queen Corporation v. Augustyn, 278 F. Supp. 717, \u201cgenerally precludes dismissal except in those instances where the face of the complaint discloses some insurmountable bar to recovery.\u201d If the complaint discloses an unconditional affirmative defense which defeats the claim asserted or pleads facts which deny the right to any relief on the alleged claim it will be dismissed. Moore \u00a7 12.08 summarizes the federal decisions as follows: \u201c \u2018A [complaint] may be dismissed on motion if clearly without any merit; and this want of merit may consist in an absence of law to support a claim of the sort made, or of facts sufficient to make a good claim, or in the disclosure of some fact which will necessarily defeat the claim.\u2019 But a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could he proved in support of the claim.\u201d\nSince the sufficiency of a statement will vary with the circumstances of each case, generalizations by the court are of little more help to a pleader than the rules themselves. As usual, enlightenment comes from observing and understanding what the courts do. The following cases are illustrative of the circumstances in which the federal courts have allowed the motion to dismiss: Day v. Walker, 206 F. Supp. 32 (W.D.N.C. 1962) (complaint revealed action barred by statute of limitations); Wallingford v. Zenith Radio Corp., 310 F. 2d 693 (7th Cir. 1962) (absolute privilege in defamation); Leggett v. Montgomery Ward & Co., 178 F. 2d 436 (10th Cir. 1949) (probable cause shown in malicious prosecution complaint); Tenopir v. State Farm Mut. Co., 403 F. 2d 533 (9th Cir. 1968) (insurance policy attached to complaint showed noncoverage); L. Singer & Sons v. Union Pac. R. Co., 109 F. 2d 493 (8th Cir. 1940) (plaintiff without capacity to maintain the suit); Case v. State Farm Mut. Auto. Ins. Co., 294 F. 2d 676 (5th Cir. 1961) (in action for wrongful termination, attached contract showed absolute right to terminate). Compare Shull v. Pilot Life Insurance Company (5th Cir. 1963) 313 F. 2d 445 (motion to dismiss denied and a dismissal with prejudice on the \u201cbasis of bare bones pleading\u201d is called \u201ca tortious thing\u201d).\nThe New York CPLR became effective 1 September 196S. Very soon thereafter it was held that \u00a7 3013 had eliminated the old requirement that a pleading state \u201cmaterial facts.\u201d In Hewitt v. Maass, 246 N.Y.S. 2d 670, 41 Misc. 2d 894 (1964), it was said: \u201cNow, if notice, or literally comprehension can be had from a pleading the method of attaining the communicable pattern becomes secondary.\u201d Id. at 672. The decision in Foley v. D\u2019Agostino, 248 N.Y.S. 2d 121 (1964), which immediately followed Hewitt \u201chas become the standard of measuring sufficiency of pleadings in New York.\u201d 48 N.C.L. Rev. 636, 640. From these and subsequent decisions we conclude that under New York\u2019s CPLR (1) the primary function of pleadings now is to apprise the court and parties of the subject matter of the controversy and the theory of recovery with sufficient precision to enable the court to control the case and the opponent to prepare; (2) by the elimination of the former requirement of \u00a7 241 of the Civil Practice Act that pleadings state material facts it was intended \u201cthat the considerable judicial effort formerly expended in distinguishing \u2018evidence\u2019 or \u2018conclusion\u2019 from \u2018fact\u2019 be directed to more useful purposes . . . but it is clear that, under CPLR, the statements in pleadings are still required to be factual, that is, the essential facts required to give \u2018notice\u2019 must be stated.\u201d Foley v. D\u2019Agostino, supra, at 125; (8) if a statement is so vague or ambiguous that a party cannot reasonably be required to frame a response he may move for a more definite statement; (4) if irregularity, defect, or omission represents an inherent deficiency which the adverse party knows will bar the pleader\u2019s right to recover or defend, the adverse party should proceed by way of a motion for summary judgment with supporting affidavits and thus secure an immediate determination on the merits; and (5) \u201c [m] otions to dismiss should not be granted unless it is very clear that there can be no relief under any of the facts alleged in the pleading for the relief requested or for other relief.\u201d Richardson v. Coy, 280 N.Y.S. 2d 623, 624.\nThe difference in the degree of specificity required by the NCRCP, CPLR, and the Federal Rules cannot be formularized. It is best realized by a comparison of the various forms of complaint illustrating the respective rules. Compare N. C. Forms 3 and 4 with Federal Forms 9 and 10. Under the \u201cnotice theory\u201d of pleading contemplated by Rule 8(a)(1), detailed fact-pleading is no longer required. A pleading complies with the rule if it gives sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand the nature of it and the basis for it, to file a responsive pleading, and \u2014 by using the rules provided for obtaining pretrial discovery \u2014 to get any additional information he may need to prepare for trial.\nAs pointed out in Shull v. Pilot Life Insurance Company, 313 F. 2d 445 (5th Cir. 1963), the notice theory of pleading does not necessarily mean that there must be a full-blown trial. Utilizing the \u201cfacility of pretrial discovery, the real facts can be ascertained and by motion for summary judgment (or other suitable device) the trial court can determine whether as a matter of law there is any right of recovery on those facts.\u201d Id. at 447.\nHowever, notwithstanding the new liberality, the warning of Myers and Humphreys, stated in 5 Wake Forest Intra. L. Rev. 70, 73, should not be ignored: \u201cAs the pleadings retain the traditional objects of formulating issues and giving notice, the claim for relief and the basis for defense must still satisfy the requirements of the substantive law which give rise to the pleadings, and no amount of liberalization should seduce the pleader into failing to state enough to give the substantive elements of his claim or of his defense.\u201d\nAt this juncture we call attention to the Comment of Professor Sizemore in his article, General Scope and Philosophy of the New Rules, 5 Wake Forest Intra, L. Rev. 1, 15: \u201c[T]here is nothing in the rules to prevent detailed pleading if the pleader deems it desirable. ... He may plead enough facts to prevent the invocation of discovery devices or the use of motions for more definite statement. Such a complaint could clearly identify the issues since Rule 10(b) requires the claim or claims to be averred in numbered'paragraphs. In other words, there is nothing to prevent skillful and candid pleaders from meeting head on in the pleadings.\u201d Id. at 15.\nTo the same effect is Comment (a) (3) upon N.C.R. Civ. P. 8(a) in N.C. Gen. Stats. Vol. 1-A at p. 599: \u201cBy specifically requiring a degree of particularity the Commission sought to put at rest any notion that the mere assertion of a grievance will be sufficient under these rules. . . . The Commission\u2019s prescription suggests that not only is it permissible under these rules for a pleader to so plead as to obviate the need for a pre-trial conference or resort to the discovery procedures but that it will frequently be his duty to do so.\u201d\nThe substance of the preceding observations was also stated by Dean Dickson Phillips in his comments upon \u00a7 970.35 in the 1970 Pocket Supplement to McIntosh, N. C. Practice and Procedure (2d ed.) : \u201cUnder this approach (notice pleading) the means are of course still left to pleaders to give such notice of legal and factual theories and so adequately to isolate issues that trial may be had in a given case on the basis of the unsupervised pleading exchange alone. But it is not intended that when this does not transpire, any time should ordinarily be spent in attempting to force the pleadings into this condition.\u201d\nAt the beginning of this opinion we noted that the motion to dismiss, which tested \u201cthe legal sufficiency of the complaint,\u201d performed a function of the demurrer under the former practice. The motion to dismiss, however, will be allowed only when, under the former practice, a demurrer would have been sustained because the complaint affirmatively disclosed that the plaintiff had no cause of action against the defendant. Bagwell v. Brevard, 256 N.C. 465, 124 S.E. 2d 129; Gillikin v. Springle, 254 N.C. 240, 118 S.E. 2d 611; Turner v. Board of Education, 250 N.C. 456, 109 S.E. 2d 211. If the complaint disclosed \u201ca defective cause of action\u201d no amendment could supply the deficiency, and the action was dismissed. Skipper v. Cheatham, supra; Bailey v. McGill, 247 N.C. 286, 100 S.E. 2d 860. If, on the contrary, the complaint contained \u201ca defective statement of a good cause of action,\u201d that is, if it was deficient in factual allegations which presumably could be supplied, the demurrer was sustained but plaintiff was allowed to amend. Murray v. Aircraft Corporation, 259 N.C. 638, 131 S.E. 2d 367.\nWhen Rule 7 (c) abolished demurrers and decreed that pleas \u201cfor insufficiency shall not be used,\u201d it also abolished the concept of \u201ca defective statement of a good cause of action.\u201d Thus, generally speaking, the motion to dismiss under Rule 12(b) (6) may be successfully interposed to a complaint which states a defective claim or cause of action but not to one which was formerly labeled a \u201cdefective statement of a good cause of action.\u201d For such complaint, as we have already noted, other provisions of Rule 12, the rules governing discovery, and the motion for summary judgment provide procedures adequate to supply information not furnished by the complaint. See the paper delivered by Dean Dickson Phillips, The Sufficiency of a Pleading as Tested by the Motion to Dismiss for Failure to State a Claim upon Which Relief Can be Granted, reported in the proceedings at the North Carolina Bar Association\u2019s Institute on the New Rules of Civil Procedure, October 1968, VI 16-19. See also Comment upon Rule 12, Vol. 1A, N.C. Gen. Stats., \u00a7 1A-1, p. 610.\nWe come now to the specific question in the instant case, do the facts alleged absolutely absolve defendants of legal responsibility for plaintiff\u2019s collision with the Herring mule? Had the pony suddenly appeared on the highway in front of plaintiff\u2019s automobile, it is clear that all those whose negligence was responsible for permitting it to escape would be liable to plaintiff for the injuries resulting from his collision with it. One who fails to close the gate which provides ingress and egress to an enclosure in which he knows a pony is kept can reasonably anticipate that it will escape .and run at large. He can also reasonably foresee the probability that the animal will go upon a nearby highway and cause injury to travelers and vehicles thereon. Wells v. Johnson, 269 N.C. 622, 153 S.E. 2d 2; Shaw v. Joyce, 249 N.C. 415, 106 S.E. 2d 459. However, it was not the pony with which plaintiff collided; it was a mule which \u2014 along with three others \u2014 became so excited by the presence of the pony at large outside the mule enclosure that it broke out, wandered onto the highway three-fourths of a mile away, and caused the collision in which plaintiff was injured.\nOn the facts alleged, we can assume that \u201cbut for\u201d defendants\u2019 negligence in permitting the pony to escape the mules would not have broken out and that plaintiff would not have collided with one of them. The question remains, however, whether defendants\u2019 negligence was a proximate, or legal, cause of the collision, that is, whether the law extends their responsibility to such a consequence.\nIn this jurisdiction, to warrant a finding that negligence, not amounting to a wilful or wanton wrong, was a proximate cause of an injury, it must appear that the tort-feasor should have reasonably foreseen that injurious consequences were likely to follow from his negligent conduct. Ratliff v. Power Co., 268 N.C. 605, 151 S.E. 2d 641; Shepard v. Manufacturing Co., 251 N.C. 751, 112 S.E. 2d 380; Hayes v. Wilmington, 243 N.C. 525, 91 S.E. 2d 673; Hall v. Coble Dairies, 234 N.C. 206, 67 S.E. 2d 63. It is not necessary that a defendant anticipate the particular consequences which ultimately result from his negligence. It is required only \u201cthat a person of ordinary prudence could have reasonably foreseen that such a result, or some similar injurious result, was probable under the facts as they existed.\u201d (Italics ours) Adams v. Board of Education, 248 N.C. 506, 103 S.E. 2d 854; 3 Strong, N. C. Index Negligence \u00a7 7 (1960). However, we have also said that a defendant is liable for the consequences of his negligence if he \u201cmight have foreseen that some injury would result from his act or omission or that consequences of a generally injurious nature might have been expected.\u201d (Emphasis added) Williams v. Boulerice, 268 N.C. 62, 149 S.E. 2d 590; Insurance Co. v. Gas Co., 247 N.C. 471, 101 S.E. 2d 389. Some of our decisions are difficult to reconcile. See the comments in 39 N.C.L. Rev. 323, 395 (1961) and 37 N.C.L. Rev. 371, 459. Compare Insurance Co. v. Gas Co., supra; Hall v. Coble Dairies, supra; and Ramsey v. Power Co., 195 N.C. 788, 143 S.E. 861, with Roberson v. Taxi Service, Inc., 214 N.C. 624, 200 S.E. 363; Ellis v. Refining Co., 214 N.C. 388, 199 S.E. 403; and Davis v. Light Co., 238 N.C. 106, 76 S.E. 2d 378.\nDefinitions and general statements made with reference to specific situations are of little help in those cases in which the defendant\u2019s negligence is followed, not by reasonably foreseeable consequences but by events which, prima facie, he could not have anticipated. Prosser, in his Law of Torts \u00a7 50 (3d Ed. 1964) at p. 288, says: \u201c \u2018Proximate cause\u2019 cannot be reduced to absolute rules. No better statement ever has been made concerning the problem than that of Street: \u2018It is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy and precedent. . . .\u2019\u201d The policy argument over whether the loss should be borne by an innocent plaintiff or a defendant whose negligence caused harmful events not reasonably foreseeable will continue. However, since it is \u201cinconceivable that any defendant should be held liable to infinity for all the consequences which flow from his act,\u201d some boundary must be set. Id. at p. 303. The concept of the foreseeable risk, especially in cases involving an intervening cause, seems to oiler the most elastic and practical solution. See Prosser at pp. 306, 310-311. See also Morris, 34 Minn. L. Rev. 185 (1950).\nOn the basis of the facts which plaintiff has alleged it would seem that the \u201cmule delivery\u201d was a consequence of the pony\u2019s escape which could not reasonably have been foreseen. However, we cannot say on the basis of the \u201cbare bones pleadings\u201d that plaintiff cannot prove otherwise, or that he can prove no facts which would entitle him to recover from defendants (or some of them) for the damages resulting from the collision. To dismiss the action now would be \u201cto go too fast too soon.\u201d Barber v. Motor Vessel \u201cBlue Cat,\u201d 372 F. 2d 626, 629 (5th Cir. 1967). This case is not yet ripe for a determination that there can be no liability as a matter of law. See Shull v. Pilot Life Insurance Co., supra. Inter alia, these questions arise: Had the pony ever escaped and agitated the Herring mules prior to 22 April 1967? If so, did defendants, or any of them, know of the incident? Did defendants have any reason to believe that the Herring fence was inadequate to confine the mules? Had the mules, to the knowledge of defendants, ever escaped before?\nWe hold that the face of the complaint shows no insurmountable bar to recovery on the claim alleged and that it gives defendants sufficient notice of the nature and basis of plaintiff\u2019s claim to enable them to answer and to prepare for trial. Indeed, defendants Duke and Fertilizer Company have not only filed answers; each has filed a third-party complaint against W. I. Herring. By utilizing the discovery rules defendants may ascertain more precisely the details of plaintiff\u2019s claim and whether he can prove facts which will entitle him to have a jury decide the merits of his claim.\nAffirmed.", "type": "majority", "author": "Sharp, J." } ], "attorneys": [ "Lewis and Rouse for 'plaintiff appellant.", "Barden, Stith, McCotter & Sugg cmd Aycock, LaRoque, Allen, Cheek & Hines for Marvin Duke and Kinston Fertilizer Company, defendant appellants.", "Spruill, Trotter & Lane by John R. Jolly, Jr., for Seaboard Coast Line Railroad Company, defendant appellant." ], "corrections": "", "head_matter": "JIMMY RAY SUTTON v. MARVIN DUKE, KINSTON FERTILIZER COMPANY, and SEABOARD COAST LINE RAILROAD COMPANY\nNo. 40\n(Filed 28 August 1970)\n1. Pleadings \u00a7 19; Rules of Civil Procedure \u00a7 12\u2014 abolishment of demurrer \u2014 failure to state a claim \u2014 motion to dismiss\nThe demurrer has been abolished by Rule 7(c) of the new Rules of Civil Procedure; when, however, a pleader has failed \u201cto state a claim upon which relief can be granted,\u201d his adversary is now permitted by Rule 12(b) (6) to assert that defense either in a responsive pleading or by motion to dismiss.\n2. Pleadings \u00a7 26; Rules of Civil Procedure \u00a7 12\u2014 demurrer under former statute \u2014 treatment as motion to dismiss\nA demurrer interposed under [former] G.S. 1-127(6) on the ground that the alleged acts and omissions of defendants, if they constituted negligence, were not a proximate cause of plaintiff\u2019s injuries will be treated as a motion to dismiss under Rule 12 (b)(6) in this appeal heard after the effective date of the new Rules of Civil Procedure.\n3. Rules of Civil Procedure \u00a7 8\u2014 adoption of \u201cnotice pleading\u201d\nBy repealing G.S. 1-122, which required a complaint to state \u201cthe facts constituting a cause of action,\u201d and substituting in lieu thereof the requirement of Rule 8(a)(1) that a \u201cclaim for relief\u201d shall be stated with sufficient particularity to give notice of the events intended to be proved showing that the pleader is entitled to relief, the legislature intended to relax somewhat the strict requirements of detailed fact pleading and to adopt the concept of \u201cnotice pleading.\u201d\n4. Rules of Civil Procedure \u00a7 8\u2014 specificity of complaint \u2014 corresponding federal rule\nNorth Carolina Rule of Civil Procedure 8(a)(1) requires the complaint to contain a more specific statement, or notice in more detail, than that required by corresponding Federal Rule 8(a)(2).\n5. Rules of Civil Procedure \u00a7\u00a7 8, 86\u2014 sufficiency of pleadings \u2014 federal and New York decisions\nWhile the variant language in the North Carolina, New York and federal rules as to pleadings prevents the assumption that the legislature adopted Rule 8(a)(1) with the judicial construction which had been placed upon either the New York or the federal counterpart, since the federal and New York rules are the source of the North Carolina Rules the Supreme Court will look to the decisions of those jurisdictions for guidance in developing the philosophy of the new rules.\n6. Rules of Civil Procedure \u00a7 8\u2014 notice theory of pleading \u2014 sufficiency of complaint\nUnder the \u201cnotice theory of pleading\u201d a statement of claim is adequate if it gives sufficient notice of the claim asserted to enable the adverse party to answer and prepare for trial, to allow for the application of the doctrine of res judicata, and to show the type of case brought.\n7. Buies of Civil Procedure \u00a7 12\u2014 motion to dismiss \u2014 motion for more definite statement\nMere vagueness or lack of detail is not ground for a motion to dismiss, but such a deficiency should be attacked by a motion for a more definite statement.\n8. Rules of Civil Procedure \u00a7 8\u2014 dismissal for failure to state a claim\nA complaint should not be dismissed for failure to state a claim unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of his claim.\n9. Rules of Civil Procedure \u00a7 8\u2014 dismissal of complaint \u2014 disclosure of affirmative defense or facts denying right to relief\nIf the complaint discloses an unconditional affirmative defense which defeats the claim asserted or pleads facts which deny the right to any relief on the alleged claim it will be dismissed.\n10. Rules of Civil Procedure \u00a7 8\u2014 sufficiency of complaint \u2014 Rule 8 (a) (1)\nUnder the \u201cnotice theory\u201d of pleading contemplated by Rule 8(a)(1), detailed fact-pleading is no longer necessary, and a pleading complies with the rule if it gives sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand the nature of it and the basis for it, to file a responsive pleading, and \u2014 by using the rules provided for obtaining pretrial discovery \u2014 to get any additional information he may need to prepare for trial.\n11. Rules of Civil Procedure \u00a7 12\u2014 motion to dismiss \u2014 when allowed\nThe motion to dismiss, while performing the function of the demurrer under the former practice, will only be allowed when, under the former practice, a demurrer would have been sustained because the complaint affirmatively disclosed that plaintiff had no cause of action against the defendant.\n12. Rules of Civil Procedure \u00a7 12\u2014 motion to dismiss \u2014 statement of defective claim vs. defective statement\nThe motion to dismiss under Rule 12(b)(6) may be successfully interposed to a complaint which states a defective claim or cause of action but not to one which was formerly labeled a \u201cdefective statement of a good cause of action.\u201d\n13. Animals \u00a7 3\u2014 failure to close gate to pony enclosure \u2014 foreseeable consequences\nOne who fails to close the gate which provides ingress and egress to an enclosure in which he knows a pony is kept can reasonably anticipate that it will escape and run at large and can reasonably foresee the probability that the animal will go upon a nearby highway and cause injury to travelers and vehicles thereon.\n14. Negligence \u00a7 8\u2014 proximate cause\nIn this jurisdiction, to warrant a finding that negligence, not amounting to a wilful or wanton wrong, was a proximate cause of an inj'ury, it must appear that the tort-feasor should have reasonably foreseen that inj\u2019urious consequences were likely to follow from his negligent conduct.\n15. Negligence \u00a7 9\u2014 proximate cause \u2014 foreseeability\nIt is not necessary that a defendant anticipate the particular consequences which ultimately result from his negligence, it being required only that a person of ordinary prudence could have reasonably foreseen that such a result, or some similar inj'urious result, was probable under the facts as they existed.\n16. Animals \u00a7 3; Rules of Civil Procedure \u00a7 8\u2014 pony roaming at large \u2014 escape by mules from enclosure \u2014 collision by motorist with mule \u2014 sufficiency of complaint under new Rules of Civil Procedure\nAllegations that defendants negligently left open the gate to an enclosure wherein a pony was customarily retained, enabling the pony to escape and run at large, that the pony went some 500 yards to a lot where some mules were enclosed, that the mules became so excited by the pony outside their enclosure that they broke out, and that one of the mules wandered onto the highway three-fourths of a mile away and caused the collision in which plantiff was inj'ured, held sufficient to withstand defendants\u2019 motion to dismiss pursuant to Rule of Civil Procedure 12(b)(6), notwithstanding on the basis of the facts alleged it would seem that the \u201cmule delivery\u201d was a consequence of the pony\u2019s escape which could not reasonably have been foreseen, since it cannot be said on the basis of the pleadings alone that plaintiff cannot prove otherwise or that he can prove no facts which would entitle him to recover from defendants, or some of them, for the damages resulting from the collision.\nOn certiorari to review the decision of the Court of Appeals reported in 7 N.C. App. 100.\nAt the October 1969 Session of Greene, defendants demurred to plaintiff\u2019s complaint (filed 27 June 1969) upon the ground that it failed to state a cause of action. Hubbard, J., sustained the demurrers and dismissed the action. In an opinion filed 31 December 1969 the Court of Appeals reversed; upon defendants\u2019 petition we allowed certiorari.\nIn summary the complaint alleges: About 9:20 p.m. on 22 April 1967 plaintiff\u2019s automobile, which he was operating at 50 MPH on Rural Paved Road 1745 in Greene County, collided with a mule which belonged to W. I. Herring. The mule was at large in consequence of the following series of events. Defendant Marvin Duke, the president of defendant Kinston Fertilizer Company, owned a white pony. On 22 April 1967, and for sometime prior thereto, the pony was kept about 100 feet from Road No. 1745 within a one-acre enclosure on the premises of defendant Fertilizer Company. Inside the fenced area were storage and other facilities used by Fertilizer Company for business purposes. The tracks of defendant Seaboard Coast Line Railroad ran beside the enclosure, and a spur track extended into the stockade through a gate. From time to time defendant Railroad delivered fertilizer and other supplies over the spur track to Fertilizer Company\u2019s storehouse in the enclosure.\nAll defendants and their agents knew that the pony was kept within the fenced area and that it would likely run at large if the gate was left open. On 22 April 1967 defendant Railroad delivered a carload of materials and supplies to Fertilizer Company, and \u201cthe defendants jointly and severally through their respective servants and agents and the said Marvin Duke, individually, said agents and servants then and there acting within the scope of and pursuant to their employment, did negligently and carelessly and unlawfully leave the gate to the enclosure wherein said pony was customarily retained, open, enabling said pony to escape and run at large.\u201d\nOn the opposite side of Road No. 1745, about 500 yards from the enclosure where the white pony was kept, Mr. Herring maintained an enclosure in which he kept four mules. Just before 8:00 p.m. on 22 April 1967, the pony, which was \u201cbeing negligently permitted to run at large,\u201d came to the vicinity of the mule lot. There the pony \u201cdid agitate, excite, and attract said mules ... in such a way that the said mules were caused to break down and break out of the Herring enclosure.\u201d Thereafter three of the mules ran at large, and plaintiff struck one of them at a point about three-fourths of a mile from the place where the animals were customarily retained and about 300 feet south of the intersection of N. C. Highway No. 91 with Rural Paved Road No. 1745. Plaintiff, traveling north, met and passed an automobile with its headlights burning. As the two cars came abreast, plaintiff saw a mule standing in his lane of traffic. Despite his efforts to avoid striking the mule, he collided with it. The collision wrecked his car and caused him serious and permanent personal injuries. He was damaged in the sum of $150,000.00.\nDefendants demurred to the complaint upon the ground that their alleged acts and omissions, if they constituted negligence, were not a proximate cause of plaintiff\u2019s injuries.\nLewis and Rouse for 'plaintiff appellant.\nBarden, Stith, McCotter & Sugg cmd Aycock, LaRoque, Allen, Cheek & Hines for Marvin Duke and Kinston Fertilizer Company, defendant appellants.\nSpruill, Trotter & Lane by John R. Jolly, Jr., for Seaboard Coast Line Railroad Company, defendant appellant." }, "file_name": "0094-01", "first_page_order": 114, "last_page_order": 129 }