Pemberton v. City of Greensboro, 205 N.C. 599 (1934)

Jan. 10, 1934 · Supreme Court of North Carolina

205 N.C. 599

TOM PEMBERTON et al. v. CITY OF GREENSBORO.

(Filed 10 January, 1934.)

1. Pleadings I a — Motion to require separate allegation of causes is properly refused where complaint alleges one cause and elements of damages.

Several elements of damages may be alleged on one cause of action, and where this has been done, defendant’s motion to require plaintiff to file an amended complaint, based on the theory that each element of damage constituted a separate cause of action and should be separately alleged, is properly refused. O. S., 506.

2. Ai>peal and Error L d—

Where a motion to strike out a paragraph is allowed in part and the correctness of the ruling refusing the motion as to whole paragraph is determined by appeal, a subsequent appeal presenting the same question will be affirmed.

3. Appeal and Error J e — Where no harm results to defendant from refusal of his motion to strike out, the judgment will be affirmed.

The refusal of a motion to strike out certain portions of a bill of particulars as irrelevant and immaterial, C. S., 537, will be affirmed where it appears that defendant was not prejudiced thereby, the matter lending itself to an easier determination by correct rulings on the admissibility of evidence offered in support of such allegations. As to whether the refusal of the motion is appealable, G. S., 534, qumre?

Appeal by defendant from Sinh, Jat October Term, 1933, of G-uilfobd.

Civil action to recover compensation for tbe partial taking of plaintiffs’ lands, or damages for an alleged nuisance arising out of tbe construction and maintenance of a sewage disposal plant.

Tbe complaint alleges several elements of damage, a number of wbicb tbe defendant asked to bave stricken out as irrelevant and immaterial. C. S., 537. Tbe motion was allowed in part and tbe plaintiffs required to file a bill of particulars. From tbis ruling, tbe defendant appealed because tbe court “refused to strike from tbe complaint tbe irrelevant or redundant matter set forth therein.” Tbe ruling was not disturbed on appeal. 203 N. C., 514, 166 S. E., 396.

Thereafter, tbe plaintiffs filed their bill of particulars, and tbe defendant again lodged its motion to require tbe plaintiffs:

First, to file an amended complaint and allege separately each separate cause of action relied upon;

Second, to strike out paragraph 3 of tbe complaint;

Third, to strike out certain portions of tbe bill of particulars.

Motion denied, and tbe defendant again appeals.

Smith, Wharton & Hudgins and Frazier & Frazier for plaintiffs.

Andrew Joyner, Jr., and Sapp & Sapp for defendant.

Stacy, C. J.

It is not perceived tbat any barm bas come to tbe defendant from tbe court’s ruling, or tbat any injury is likely to result therefrom. Doubtless tbe plaintiffs made tbeir specifications as broad as tbey could, because tbey were aware tbat, in filing a bill of particulars, tbey would be restricted in tbeir proof “to tbe items therein set down.” Gruber v. Eubanks, 199 N. C., 335, 154 S. E., 318; Ham v. Norwood, 196 N. C., 762, 147 S. E., 291; Gore v. Wilmington, 194 N. C., 450, 140 S. E., 71; S. v. Wadford, 194 N. C., 336, 139 S. E., 608; S. v. Lea, 203 N. C., 13, 164 S. E., 737.

But considering tbe several grounds of tbe motion in tbe order named :

First: As we understand it, but a single cause of action is set out in tbe complaint, hence tbe first prayer of tbe motion was properly denied. It is true, several elements of damages are alleged, but this does not constitute as many separate and distinct causes of action. C. S., 506; Rule 20, sec. 2, Rules of Practice, 200 N. C., 826.

Second: Tbe motion to strike out paragraph 3 of tbe complaint was allowed in part and presented on tbe first appeal. 203 N. C., 514, 166 S. E., 396.

Third: In so far as tbe.order deals with tbe bill of particulars, it may be doubted whether it is appealable. C. S., 534; Temple v. Western Union, ante, 441; Townsend v. Williams, 117 N. C., 330, 23 S. E., 461. Compare Ellis v. Ellis, 198 N. C., 767, 153 S. E., 449.

Tbe court below was of opinion tbat tbe matters and specifications, now assailed, could better be determined by rulings upon tbe competency of tbe evidence, if and when offered, than by undertaking to chart tbe course of tbe trial by passing upon undenied allegations. S. v. Lumber Co., 199 N. C., 199, 154 S. E., 72. In this, we see no error. There may be no evidence offered on some of tbe items, which would ipso facto eliminate them. Then, why debate them in advance of tbe necessity of doing so?

It is not to be inferred, however, from tbe failure of tbe court presently to strike out some of tbe specifications in tbe bill of particulars, tbat tbey are regarded as competent to be shown in tbeir entirety on tbe bearing. Tbe competency of tbe evidence will be determined when offered. Tbe proper measure of damages in such cases bas been tbe subject of a number of decisions, and these may be called to tbe attention of tbe court on tbe trial if desirable.

Affirmed.