Petty v. . Lemons

8 S.E.2d 616, 217 N.C. 492, 1940 N.C. LEXIS 271

Opinion

Stacy, C. J.

The merits of the case are not before us. It is alleged that the defendant Exchange, through its attorney in fact, executed a public liability bond pursuant to the terms of an ordinance which apparently requires only an indemnity bond. Annotation 96 A. L. R., 356. The bond itself is not a part of the complaint. We are unable to determine its character without seeing it. Sossamon v. Cemetery, Inc., 212 N. C., 535, 193 S. E., 720.

Bealizing that the characterization of the bond is only a conclusion of the pleader and that the rights of the parties ought not to be prejudiced by an adjudication upon merely interpretative allegations, the defendants have sought, by motion, to have certain portions of the bond made a part of the record on appeal. The plaintiff suggests that other portions of the bond are more favorable to his interpretation. The bond in its entirety is not here. R. R. v. Robeson, 27 N. C., 391.

The contention that the statute authorizing the adoption of the ordinance, ch. 279, Public Laws 1935, requires the bond “to be conditioned on such operator responding in damages for any liability incurred on account of any injury to persons or damage to property resulting from the operation of any such . . . taxicab or other motor vehicle,” is met by the allegations of the complaint which make out a case of indemnity. It is essential that the allegations of the complaint conform to the theory upon which the plaintiff seeks to recover. Horney v. Mills, 189 N. C., 724, 128 S. E., 324.

In this state of the record, we are constrained to reverse the rulings on the demurrers, for insufficiency of the facts presently alleged to constitute a cause of action against the demurring defendants, Clark v. Bonsal, 157 N. C., 270, 72 S. E., 954, with the observation that plaintiff may apply to the court below, under C. S., 515, for leave to amend his complaint, if so advised. This might have been done in the first instance under 3 C. S., 513. Ballinger v. Thomas, 195 N. C., 517, 142 S. E., 761.

Eeversed.