Vickers v. Russell

253 N.C. 394 | N.C. | 1960

Bobbitt, J.

A plaintiff must make out his case secundum allegata. He cannot recover except on the case made by his pleading. Proof without allegation is no better than allegation without proof. Andrews v. Bruton, 242 N.C. 93, 86 S.E. 2d 786, andi cases cited.

The gist of plaintiff’s factual allegations in original complaint is that (1) plaintiff “was thrown about the interior of . . . McDaniel’s automobile” and injured when the left front of the McDaniel car “violently collided” with the rear of the Russell car, and (2) this occurred immediately after Russell attempted to make a left turn into Connell Crossing Street.

In the amendment, plaintiff did not delete any of his original allegations nor did he add to his original specifications of negligence, but alleged he “was first thrown about the interior of . . . McDaniel’s automobile . . . when said automobile first came to a sudden stop,” and that “the force and momentum which first dazed or knocked plaintiff unconscious occurred at the time of the collision or a moment before the collision when . . . McDaniel’s automobile first came to a sudden stop.” (Our italics.)

The amendment does not allege that McDaniel suddenly and negligently stopped his car prior to collision with the Bussell car and on account thereof plaintiff was “thrown about the interior of McDaniel’s automobile” and injured. Indeed, if the amendment were construed as containing such allegation, the equivocal allegations of the amendment would be in direct conflict with the plain and explicit allegations of the original complaint.

Uncontradicted evidence tended to show:

East Main Street is thirty feet wide. It has no marked center line. Connell Crossing Street, approximately twenty feet wide, “comes to a dead end” at East Main. Railroad tracks cross Connell Crossing Street approximately twenty-five feet (south) from the south curb of East Main. The elevation of Connell Crossing Street at the railroad tracks is five or six feet higher than its elevation at East Main.

Plaintiff’s wife, a sister of McDaniel, and two Vickers children, ages nine and eleven, were also guest passengers in the McDaniel car. Mrs. Vickers was on the front seat, between McDaniel, the driver, and plaintiff.

The “left front corner” of the McDaniel car was damaged, i.e.; the left front fender, the headlight and part of the grille. The “front of the rear bumper” and the trunk of the Russell car were damaged.

Russell alleged his car was struck by the McDaniel car while he was waiting, almost completely stopped, for an approaching (east-boundi) car to pass before he made a left turn into Connell Crossing Street. In this connection, it is noted that plaintiff alleged the collision occurred immediately after Russell “attempted” to make a left turn into Connell Crossing Street.

According to McDaniel’s allegations, Russell completed a left turn into Connell Crossing Street and the collision occurred when the Russell car rolled backwards, down the sharp incline, the rear thereof striking the front of the McDaniel car. In this connection, it is noted that the complaint contains no allegation to the effect that a collision occurred in this manner.

McDaniel, offered by plaintiff, testified the collision occurred in the manner he had alleged; and both plaintiff and plaintiff's wife testified that the Russell car, having entered Connell Crossing Street, rolled back into the intersection and collided with the McDaniel car. As Mrs. Vickers expressed it: “Russell . . . pulled up here and must have stopped, and then he shot back and hit the left front fender of the McDaniel car.” Under this testimony, the negligence of Russell in backing his car or permitting it to roll backwards into the intersection was the proximate cause of its collision with the McDaniel car. But the complaint contains no allegation that Russell was negligent in this respect or that the collision occurred in this factual situation.

As to McDaniel, plaintiff and his wife testified in substance: McDaniel “suddenly stopped” his car. When this occurred, plaintiff was thrown into the windshield and momentarily dazed. Thereafter, the Russell car rolled back from Connell Crossing Street and struck the (stopped) McDaniel car. As indicated above, negligence of McDaniel, if any, in suddenly stopping his car prior to collision with the Bussell car was not alleged. It is noted that plaintiff, on cross-examination, testified: “The first time I ever said anything about McDaniel’s car coming to a sudden stop was in here on the witness stand today.”

In addition, plaintiff testified: “My belief is there were two collisions. The first one when the McDaniel car came to a sudden stop. The front of the McDaniel car hit the Russell ear, and it went forward up the incline, and the Russell car rolled back down and collided with the left front of the McDaniel car and knocked the hood open.” But this testimony as to plaintiff’s belief there were two collisions was stricken by the court in view of plaintiff’s further testimony, in the absence of the jury, that the only collision he saw occurred when the Russell car backed into the McDaniel car and the only reason he had to believe there had been a prior collision was the fact that the McDaniel car “suddenly stopped.” Plaintiff did not except to this ruling. Moreover, there is no allegation that more than one collision occurred.

There is testimony tending to show that each of the defendants was negligent in certain of the respects alleged by plaintiff. Whether such alleged negligence is related to plaintiff’s injuries as a proximate cause thereof depends upon the basic factual situation. As indicated above, plaintiff’s evidence tends to establish a basic factual situation at variance in material respects from that alleged. Nothing appears to indicate that plaintiff moved for leave to amend his complaint to conform to the evidence offered by him at trial.

Confronted by the material variance betweeen plaintiff’s allegations and proof, the court below properly entered judgment of involuntary nonsuit. Lucas v. White, 248 N.C. 38, 42, 102 S.E. 2d 387, and cases cited; Moore v. Singleton and Hall v. Singleton, 249 N.C. 287, 106 S.E. 2d 214. As stated by Winborne, C. J., in Lucas v. White, supra: “The court cannot take notice of any proof unless there is a corresponding allegation.”

■ It is noted that judgment of involuntary nonsuit for material variance between allegata and probata does not preclude plaintiff from instituting a new action.

In view of the basis of decision, it is unnecessary to consider plaintiff's assignment of error directed to the overruling by the court of plaintiff’s demurrer to McDaniel’s further defense based on alleged estoppel.

Affirmed.