40 S.E.2d 412 | N.C. | 1946
This was an action to recover for alleged personal injuries and for property damage caused by a collision between the Dodge automobile of the plaintiff and a Studebaker truck of the defendant on the Lincolnton Road about one and a half miles from Salisbury in April, 1944. The complaint contains allegations of actionable negligence on the part of the defendant in the operation of the defendant's truck, and of personal injuries and property damage proximately caused thereby. The answer denies the allegations of the defendant's negligence, and avers that even if he were negligent the plaintiff was guilty of contributory negligence, making specific allegations of such contributory negligence; and also in his further answer avers in Paragraph III thereof as follows: "That prior to the institution of this suit plaintiff in this case instituted a suit in the Rowan County Court for the same collision in which he alleged his total damage of every kind at $523.50, the complaint of said action having been duly sworn to by the plaintiff herein, and which action was dismissed by the court, copy of summons in said action, together with copy of complaint, is hereto attached and asked to be made a part of this answer as fully as if written herein."
The plaintiff lodged a motion to strike the said allegations contained in Paragraph III of defendant's answer before the clerk of Rowan County, which motion was denied. When the case was called for trial and the jury had been sworn and empaneled, the plaintiff made a similar motion to strike from the answer Paragraph III of the further answer, together with summons and complaint filed by the plaintiff in the former *734 action which had been incorporated in the answer by reference thereto, which motion was allowed by Sink, J., at term time, and to the order allowing said motion the defendant preserved exception, and appealed, assigning error. There is but one assignment of error in the record, which assignment is brought forward in appellant's brief, namely: "The Court erred in sustaining the motion of the plaintiff to strike paragraph 3 of the defendant's further answer, together with the copy of the summons and copy of the complaint referred to in the said further answer." We are of the opinion, and so hold, that the answer to the question posed is in the negative.
The defendant does not plead the pendency of the other action, but on the contrary stipulates that a voluntary nonsuit had been taken and the costs therein had been paid by the plaintiff. The plaintiff therefore contends that the inclusion in the further answer of the defendant of paragraph 3, together with the summons and complaint in a former action was not germane to the trial in this case, but was immaterial, irrelevant, evidential and redundant. The answer contained a general and specific denial of the material allegations of the complaint, and averred the contributory negligence of the plaintiff. This was all that was required of the defendant to present his defense. The order striking the irrelevant matter from the answer did not deprive the defendant of any substantial right or defense. Bank v. Atmore,
"Allegations which set forth evidential matters would be considered irrelevant, and excessive fullness of detail would be redundant," sec. 371, p. 378, and further, "the material, essential, or ultimate facts upon which the right of action is based should be stated, and not collateral or evidential facts, which are only to be used to establish the ultimate facts. The plaintiff is to obtain relief only according to the allegations in his complaint and, therefore, he should allege all of the material facts, and not the evidence to prove them." McIntosh, N.C. Prac. Proc., sec. 379, p. 388. Revis v. Asheville,
"The function of a complaint," as stated by Walker, J., in Winders v.Hill,
As was said in Hill v. Stansbury,
"While the motion to strike was not made in proper time, that did not divest the court of the power, in the exercise of its sound discretion, to allow the motion during the term at which the case was on the calender for trial, and the statement of the judge below, in denying the motion when first made, that it was not a matter of discretion, was an inadvertence (Hines v. Lucas,
"A discretionary ruling of the Superior Court is not reviewable on appeal unless it clearly appears that there has been an abuse of the discretionary power, and defendant's exception to a discretionary ruling of the trial court in the present case cannot be sustained." 2d syllabus ofCody v. Hovey,
The order of the judge below is
Affirmed. *736