O. P. Lutz Furniture Co. v. Dixie Home Stores

88 S.E.2d 343, 242 N.C. 346, 1955 N.C. LEXIS 608

• Court: Supreme Court of North Carolina
• Decided: June 30, 1955
• Status: Published

Opinion

PARKER, J.

The questions of law presented for our determination in the present case are identical with the questions of law presented for determination in Lutz Industries, Inc. v. Dixie Home Stores, a corporation, and Robert A. Gibbons and Henry M. Smith, t/a Gibbons & Smith, ante, 332. It was the same fire; the allegations of the Complaint are substantially identical, except as to allegations of damages; the defendants are the same, and their briefs are practically verbatim; and the plaintiff’s briefs contain substantially the same argument.

What is said in that opinion is controlling here. Therefore, it is ordered:

One. The assignments of error of the Dixie Home Stores Nos. 3, 4 and 8, and the assignments of error of Gibbons & Smith Nos. 3, 4 and 8 are overruled, except that in each defendant’s assignment of error No. 3 the words: “and also which has been adopted by the City of Lenoir” appearing in Paragraph 7 of the Complaint, will be stricken.

Two. The assignments of error Nos. 1, 2, 7 and 10 of the Dixie Home Stores, and assignments of error Nos. 1, 2, 7 and 10 of Gibbons & Smith are sustained.

Three. The assignment of error No. 11 of each defendant is overruled.

All other assignments of error have been abandoned by the defendants.

The National Electrical Codes of 1935, 1940 and 1951 consist of over 300 pages for each year. The plaintiff shall be required by the Superior Court to amend its complaint, and to specifically plead the parts of the National Electrical Code upon which it relies and the year of the Code.

The orders entered, in accordance with this opinion, will be

Modified and Affirmed.