| N.C. | Feb 26, 1964
The facts alleged, but not the pleader’s legal conclusions, are deemed admitted when the sufficiency of a complaint is tested by a demurrer. Strong, N. C. Index, Pleadings § 12. The question is whether the facts alleged by plaintiff, liberally construed in his favor, are sufficient to constitute a cause of action.
Plaintiff’s action is in tort. Even so, the rights and obligations of plaintiff and defendant inter se arise from and are determined by the contractual relationship subsisting between them. Pinnix v. Toomey, 242 N.C. 358" court="N.C." date_filed="1955-06-30" href="https://app.midpage.ai/document/pinnix-v-toomey-1342131?utm_source=webapp" opinion_id="1342131">242 N.C. 358, 87 S.E. 2d 893.
Plaintiff did not attach to his complaint and incorporate therein by reference a copy of the bond. The only portion of the bond quoted in the complaint is a provision that plaintiff “shall cooperate with the company in all matters pertaining to the loss or claim.” The only reasonable inference to be drawn from plaintiff’s allegations is that defendant, under the terms of the bond, agreed to indemnify plaintiff, an employer, against financial loss caused by the dishonesty of an employee.
There is no allegation the criminal warrants signed by plaintiff on October 14, 1952, and on January 14, 1953, contained any false accusation. Plaintiff alleged defendant in March, 1953, paid plaintiff’s claim “in the amount of $840.39 to cover shortages in the account of James MacGray.” Presumably, the criminal warrants were based on the facts plaintiff asserted as the basis of his claim against defendant.
Plaintiff does not allege he was obligated by the terms of the bond to sign such criminal warrants as a condition precedent to his right to recover on the claim he was asserting against defendant. The provision with reference to plaintiff’s cooperation “in all matters pertaining to the loss or claim,” standing alone, falls far short of imposing an obligation that plaintiff sign criminal warrants. No reason appears why plaintiff could not have ignored defendant’s alleged “specific request, direction and instruction” and brought suit against defendant to recover on account of the alleged MacGray shortage. Hence, we need not consider whether plaintiff would be in better position if, under the terms of the bond, he were obligated to sign such criminal warrants as a condition precedent to his right to recover on the claim he was asserting against defendant.
Allegations as to the failure of attorneys engaged by defendant to assist or take part in the criminal prosecution, and allegations as to the refusal of defendant to assist plaintiff in the defense of the malicious prosecution action, afford no basis for recovery. No facts are alleged from which it may be inferred that defendant was obligated to provide attor
In one allegation (quoted in our preliminary statement) plaintiff asserted he signed the criminal warrants “as the agent of the defendant.” The theory of recovery stressed in plaintiff’s brief is predicated on the proposition that plaintiff was acting as agent for defendant. However, in view of plaintiff’s allegations as to the actual relationship subsisting between him and defendant, the quoted allegation as to agency must be considered a legal conclusion rather than a factual allegation.
Typical of decisions cited and stressed by plaintiff are Dickerson v. Refining Co., 201 N.C. 90" court="N.C." date_filed="1931-06-15" href="https://app.midpage.ai/document/dickerson-v--refining-co-3675065?utm_source=webapp" opinion_id="3675065">201 N.C. 90, 159 S.E. 446; Parrish v. Manufacturing Co., 211 N.C. 7" court="N.C." date_filed="1936-12-16" href="https://app.midpage.ai/document/parrish-v-boysell-manufacturing-co-3663460?utm_source=webapp" opinion_id="3663460">211 N.C. 7, 188 S.E. 817; D’Armour v. Hardware Co., 217 N.C. 568, 9 S.E. 2d 12. The gist of these decisions is stated in Parrish as follows: “It is elementary that the master is responsible for the tort of his servant which results in injury to another when the servant is acting by authority or within the scope of his employment and about the master’s business. (Citation). Thus, where a servant, acting with authority or within the scope of his employment, wrongfully procures the arrest of a person, the master is liable in damages for such arrest and imprisonment.”
The decisions cited by plaintiff are not in point. In the first place, no facts are alleged sufficient to support the legal conclusion that plaintiff was the agent of defendant. Apart from this, the cited decisions involve actions by the injured party against the alleged principal (or against both the alleged agent and the alleged principal) in which the plaintiff seeks to hold the principal liable for the alleged tortious acts of the agent. Plaintiff’s allegations disclose that he was sole defendant in MacGray’s action for malicious prosecution. No question is presented as to whether MacGray had a cause of action against the defendant herein.
Our conclusion is that the complaint does not allege facts sufficient to constitute a cause of action. Hence, the judgment sustaining the demurrer is affirmed.
Affirmed.