Laughinghouse v. Farm Bureau Mutual Automobile Insurance

80 S.E.2d 457, 239 N.C. 678, 1954 N.C. LEXIS 605

• Court: Supreme Court of North Carolina
• Decided: March 17, 1954
• Docket: 235
• Status: Published

Opinion

Per Curiam.

The defendant assigned as error the denial of its motion for nonsuit at the close of all the evidence. The record discloses that the case on appeal was settled by agreement of counsel. Notwithstanding, the case on appeal sets out the evidence by question and answer and not in narrative form as required by Rule 19 (4), Rules of Practice in the Supreme Court, 221 N.C. 544 (556). The rule is mandatory. Failure to comply therewith necessitates a dismissal of the appeal. Pruitt v. Wood, 199 N.C. 788, 156 S.E. 126; Rhoades v. Asheville, 220 N.C. 443, 17 S.E. 2d 500. In such case this Court will consider only errors presented by the record proper. Cressler v. Asheville, 138 N.C. 482, 51 S.E. 53; Hall v. Hall, 235 N.C. 711, 71 S.E. 2d 471.

In this Court, the defendant, for the first time, demurred ore ienus to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The complaint, liberally construed in favor of the plaintiff, discloses that the allegations are sufficient to state a cause of action against the defendant for damages caused by its breach of an agreement to insure the plaintiff under a loss payable clause to the extent of plaintiff’s loss resulting from a collision in which the Frazer automobile was damaged. The demurrer is overruled.

Judgment affirmed and appeal dismissed.