Ed RICE, Plaintiff,
v.
William RIGSBY, Defendant.

*36 A. E. Leake, Marshall, for plaintiff.

Williams, Williams & Morris, Asheville, for defendant.

PER CURIAM.

The testimony of both plaintiff and defendant that defendant was neither drunk nor under the influence of any intoxicant at the time his automobile overturned and injured plaintiff is set at naught by the allegation in plaintiff's complaint that defendant was operating his motor vehicle while under the influence of an intoxicating beverage and that such operation was the proximate cause of his injuries. The opinion in Davis v. Rigsby, supra, is controlling here. The motion for nonsuit should have been allowed.

Reversed.