*1 APPEALS COURT OF Piver Pierce v. HUSBAND, AND DOROTHY R. DR. JAMES W. O. PIERCE AUBREY PIERCE v. PIVER — Physicians, § Surgeons improperly ligation per- and Allied 12.1 tubal Professions subsequent pregenancy sufficiency allege malpractice to formed — — plaintiff’s erred in dismiss motion to to state a for failure relief could be where plaintiff alleged performed ligation improperly defendant tubal her pregnant, plaintiff sought compensation and that she became and for her ex- stemming services and loss of from the for the and costs of raising providing age emancipation. and for the child until APPEAL by Tillery, plaintiffs Judge. from entered Judgment Court, 7 February 1979 in Superior County. Heard in the ONSLOW Court of 1979. Appeals November brought
Plaintiffs seeking recovery damages for suffered as a result of alleged contract on the part of defendant. The feme that she had alleged engaged defendant to ovary. remove tumor from her left She also she alleged that further engaged perform defendant time, bilateral tubal at ligation the same so would that she again become pregnant. operations were December, 1977, 1976. November of On the 28th of feme plaintiff gave birth to a child. She prayed damages for compensate her for her expenses and loss of stemming services from pregnan- cy, and raising also for the costs of for the child providing until the age emancipation. Defendant moved to dismiss the 1A-1, 12(b))6), complaint pursuant to N.C. Stat. Gen. the trial court From that plaintiffs motion. dismissal appeal. Turner,
J. Harvey the plaintiffs. Marshall, Williams, Gorham Ronald H. Brawley, Woodruff, defendant. APPEALS COURT OF [45
Pierce v. Piver (Robert M.), Judge. MARTIN the is the only presented by appeal whether
The question com- in motion to dismiss the court erred 12(b)(6) which failure state a claim under Rule plaint relief be granted. could Duke, 12(b)(6), in Sutton v. Sharp,
In Justice discussing 94, 105-06, 161, (1970), 176 277 S.E. 2d 168 stated: N.C. the we noted the mo- beginning opinion
At of this that dismiss, legal sufficiency tested “the of the tion to which a function of the demurrer under the complaint,” dismiss, however, will be practice. The motion to former when, the a only practice, under former demurrer because the affirma- complaint would have been sustained had action tively plaintiff disclosed that the no cause of the defendant. against White, 661, 667, 698, S.E. 2d 702 White v. 296 N.C. 252
In (1979), Exum stated: Justice 12(b)(6) only legal of Rule motion is to test the purpose a which is
sufficiency against the it directed. pleading [Cita- the is to In such a motion deciding tion omitted] pleading challenges it as true. allegations treat function a to dismiss is to “The of motion omitted] [Citation claim, a the facts which Niece support the law of it.” test (N.D. Sears, Co., 792, 293 794 Supp. F. Okla. Roebuck 12(b)(6)). of eviden- Federal Rule Resolution (applying scope is not within the of the Rule. tiary conflicts thus 232, Bank, 227, 231, 235 252 S.E. 2d App. In O’Neill v. N.C. Hendrick, J., (1979), we held: through speaking a In should not be dismissed complaint North Carolina can be failure to state beyond it doubt that can appears plaintiff prove unless him in of his claim that would entitle support no set of facts clearly may A be dismissed on motion if complaint to relief. merit; an may want of consist in any without and this merit claim, of law to or in the disclosure of support absence necessarily will A fact defeat claim. some that insufficiency it not be dismissed for unless appears should OF APPEALS COURT State Davis certainty is upon any entitled to no relief state of facts be claim. proved support that could in [Citations omitted] 692, Co., 885,
See
Penney
179 S.E.
cert.
Alltop
App.
N.C.
348,
denied 279
N.C.
S.E. 2d 580
is basically
for medical malpractice,
one
sounding
in
contract. Plaintiffs’
ade-
quately
a claim
stated
for relief cognizable
existing
under
legal
principles
jurisdiction.
Similar
complaints,
alleging
negligence and breach of
have been found sufficient
*3
(Fla.
jurisdictions.
other
Jackson Anderson
App.) 230 So.
(1970);
(Minn.)
(1976);
Martineau
Nelson
Reversed.
Judges Hedrick and concur. WELLS
To the extent to which majority opinion recognizes plain- defendant, tiffs’ claim recovery paid fees ex- child, incurred due to delivery for pain to the feme suffering due birth, pregnancy and occasioned or contributed to negligence or breach of I concur.
STATE OF NORTH CAROLINA CHARLES DAVIS prosecutor’s Criminal Law 102.9— reference to defendant as S.O.B.”— “mean new trial prosecutor’s Defendant is entitled to a new trial because of the reference jury argument to him in as “mean S.O.B.”