Whichard v. Lipe

221 N.C. 53

Opinions

BarNhill, J.

Plaintiff elected to allege that defendant Tilley (who was not served with summons) was operating defendant’s truck at the time it allegedly collided with the truck occupied by plaintiff’s intestate. Expressio facii cessare taciturn. There is no evidence tending to support this allegation. Plaintiff so understood and during the trial took the position that some agent of defendant was driving but declined to say which one. The court likewise so understood and more than once charged the jury “there is no evidence in this case as to who was operating the truck known as the Lipe truck.” Non constat this variance was apparent almost from the beginning of the trial plaintiff made no motion to amend but elected to stand her ground upon the complaint as written.

“It has so often been said as to have grown into an axiom that proof without allegation is as unavailing as allegation without proof. There must, under the old or new system of pleading, he allegata and probata, and the two must correspond with each other. When the proof materially departs from the allegation, there can be no recovery without an amendment.” Talley v. Granite Quarries Co., 174 N. C., 445, 93 S. E., 995; McKee v. Lineberger, 69 N. C., 217; Brittain v. Daniels, 94 N. C., 781; Faulk v. Thornton, 108 N. C., 314; Hunt v. Vanderbilt, 115 N. C., 559; Green v. Biggs, 167 N. C., 417, 83 S. E., 553.

The plaintiff must make out her case secundum allegata and the court cannot take notice of any proof unless there be a corresponding allegation. Brittain v. Daniels, supra; Faulk v. Thornton, supra; McCoy v. R. R., 142 N. C., 383.

Where there is a material variance between the allegation and the proof this defect may be taken advantage of by motion for judgment as of nonsuit, there being a total failure of proof to support the allegation. S. v. Gibson, 169 N. C., 318, 85 S. E., 7; S. v. Harbert, 185 N. C., 760, 118 S. E., 6; S. v. Jackson, 218 N. C., 373, 11 S. E. (2d), 149, and cases cited.

The plaintiff has failed to establish her cause of action as alleged. She requested no amendment. Hence, the motion for judgment as of nonsuit should have been allowed.

Defendant seriously contends that in any event the cause should be nonsuited for failure of proof. Some of us concur in this view for the reason that we are of tbe opinion there is no proof of negligence or proximate cause. However, in view of tbe variance between tbe allegations and tbe evidence, wbicb in itself requires a reversal on tbe ruling on tbe motion to nonsuit, we bave concluded to refrain from a discussion or decision of tbis question. If plaintiff pursues ber cause further then, upon a retrial, the testimony may present new and varying phases of fact. Tbe trial judge should be free to rule thereon unrestrained by any decision by us upon tbe evidence as it appears on tbis record. Hence, tbe course followed in Hunt v. Vanderbilt, supra, is tbe safer and more impartial one to pursue in tbe disposition of tbis appeal.

Whether tbe plaintiff may now in tbis cause move in tbe court below for leave to amend under statute, C. S., 545, et seq., is not now before us for decision. See Shelton v. Davis, 69 N. C., 324.

Tbe judgment below is

Eeversed.