Messick v. Turnage

Supreme Court of North Carolina

Messick v. Turnage

83 S.E.2d 654, 240 N.C. 625, 1954 N.C. LEXIS 492

Supreme Court of North Carolina·Decided September 22, 1954·No. 20·Published·Cited by 14 cases

Opinion

Higgins, J.

The negligence sufficiently pleaded in the complaint is to the effect that the defendant “knew or should have known . . . that said roof was leaking and in bad repair . . .” There is not a suggestion in the evidence that the roof was leaking and in bad repair. It was incumbent upon the plaintiff not only to prove negligence proximately causing her injury, but it was her duty to prove negligence substantially as alleged in her complaint. This she failed to do. Proof without. allegation is as unavailing as allegation without proof. Smith v. Barnes, 236 N.C. 176, 72 S.E. 2d 216; Bowen v. Darden, 233 N.C. 443, 64 S.E. 2d 285.

The judgment of the Superior Court of Beaufort County is

Affirmed.

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Higgins, J.

The negligence sufficiently pleaded in the complaint is to the effect that the defendant “knew or should have known . . . that said roof was leaking and in bad repair . . .” There is not a suggestion in the evidence that the roof was leaking and in bad repair. It was incumbent upon the plaintiff not only to prove negligence proximately causing her injury, but it was her duty to prove negligence substantially as alleged in her complaint. This she failed to do. Proof without. allegation is as unavailing as allegation without proof. Smith v. Barnes, 236 N.C. 176, 72 S.E. 2d 216; Bowen v. Darden, 233 N.C. 443, 64 S.E. 2d 285.

The judgment of the Superior Court of Beaufort County is

Affirmed.

Messick v. Turnage, 83 S.E.2d 654, 240 N.C. 625, 1954 N.C. LEXIS 492 (N.C. 1954).

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Opinion

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