Plaintiffs’ motion to strike is addressed to each further answer and defense in its entirety and in substance, if not in .form, is a demurrer to each further answer and defensе. The court, in allowing plaintiffs’ motion to strike, in effect sustained a demurrer to each of defendant’s further defenses. Hence, Rule 4(a); Rules of Practice in the Supreme Court,
“A demurrer or motion to strike admits, for the purpose of the hearing thereon, the truth of the allegations so challenged. When the demurrer or motion is, as here, directed to the sufficiency of a pleaded defense, the one question presented to the judge fоr decision is as to whether the facts alleged constitute a valid defеnse, in whole or in part, to plaintiff’s cause of action. The judge is not permitted to hear evidence or find facts
dehors
the record. He must acсept the facts as -alleged and bottom his answer thereon.” Barnhill, J. (later C.J.), in
Stone v. Coach Co.,
In the first further answer and defense defendant alleged inter alia that Lumbermens Mutual Casualty Company, plaintiffs’ insurer, “paid to the plaintiffs for dаmage to the house -and damage to the contents and for living expenses sums equivalent to all tire losses which the plaintiffs sustained in the fire,” and that the Casualty Company, not plaintiffs, is “the real party in interest.” G.S. 1-57.
Where insured prоperty is destroyed or damaged by the tortious act of -a third party, and the insurance company pays its insured, the owner,
the full amount
of his loss, the insurance company is sub-rogated to the owner’s (indivisible) -cause of action agаinst such third party. In such event, the insurance company is “the real party in interest” (G.S. 1-57) and must sue in its own name to enforce -its right of subrogation against the tort-feasor.
Burgess v. Trevathan,
Plaintiffs, in their motion to strike, assert that “Lumbermens Mutual Casualty Company is not the real party in interest,” that “the payments by said company to the plaintiffs . . . covered only a portion of the plaintiffs’ loss,” and that defendant did not allege facts but conclusions.
Defendant’s allegation that the Casualty Company paid plaintiffs the full amount of their loss is an allegation оf fact and may not be challenged by demurrer. As to a “speaking demurrer,” see
Construction Co. v. Electrical Workers Union,
For .the reasons stated the portion of Judge McConnelPs order allowing plaintiffs’ motion to strike in its entirety defendant’s first further answer and defense and paragraph 1 of his prayer for relief is reversed.
With reference to the second further answer and defense, defendant had ia clear sight i» allege itfa,t he had built plaintiffs’ house or causеd it to be built according to plans and specifications established by рlaintiffs and that plaintiffs had accepted the completed job рrior to the fire. Hence, the portion of Judge McConnell’s order allоwing plaintiffs’ motion to strike in itá entirety defendant’s second further answer and defense and paragraphs 2 and 3 of his prayer for relief, is reversed.
Whether pаrticular allegations of either or both of defendant’s further answers and dеfenses should be stricken is not before us. A motion to strike under G.S. 1-153 should be directеd to specific allegations.
Miller v. Bank,
No question is presented as to the rights and liabilities of defendant and the Garmons inter se. The record contains no cross complаint by defendant against the Garmons. Nor does it show service of procеss on the Garmons.
As to matters dehors the record, albeit discussed freely in the briefs, we refrain from comment.
Reversed.