Messick v. Turnage, 240 N.C. 625 (1954)

Sept. 22, 1954 · Supreme Court of North Carolina
240 N.C. 625


(Filed 22 September, 1954.)

1. Negligence § 19b (5) —

Plaintiff instituted tbis action to recover for personal injury allegedly caused by tbe falling of plaster in defendant’s theatre. Tbe allegations were to tbe effect that tbe plaster fell because of seepage of water due to a leaking roof, but tbe evidence was to tbe effect that tbe water flowed from a rest room on tbe balcony level. Held,: Nonsuit was properly entered for variance between tbe allegation and proof.

2. Pleadings § 24—

Proof without allegation is as unavailing as allegation without proof.

PlaiNtiff’s appeal from Carr, J., February 1954 Term, Beatjfoet Superior Court.

In tbis action tbe plaintiff seeks to recover damages on account of injuries sbe received while a patron in defendant’s moving picture theatre. Tbe allegations in her complaint are in substance that sbe purchased a ticket and entered tbe theatre during a bard rain; that falling plaster and water behind her so frightened her that sbe involuntarily jumped from her seat, striking tbe metal part of tbe seat in front, causing her injury. Tbe particular breach of duty on tbe part of tbe defendant which sbe alleges is actionable negligence is set out in tbe following words: “That tbe defendant failed to maintain a safe theatre and auditorium for plaintiff’s enjoyment, in that tbe defendant knew or should have known by reasonable observation which was bis duty, that said roof was leaking and in bad repair.”

Sbe further alleges somewhat indefinitely that tbis condition caused tbe plaster to give way. The other allegations of negligence are too general, too indefinite, and too vague to be availing.

Tbe defendant answered, denying negligence, and denying that tbe roof was leaking or in bad repair.

Tbe evidence, in the light most favorable to tbe plaintiff, tended to show tbe theatre consisted of a main floor and a balcony which extended over tbe rear part of tbe main floor on either side and to tbe rear. A restroom on tbe level with tbe balcony floor was maintained for tbe patrons of the theatre. A valve in one of tbe fixtures in tbe restroom failed to close, causing water to spill out to the floor. This floor was of tile, sloping toward tbe center, and fitted with a drainpipe sufficient in size to carry all overflow. Tbis pipe was covered with a grill. Cigarette butts and other debris bad clogged tbe pipe. Water covered the floor to a depth sufficient to overflow a three-quarter-inch strip at tbe door. Tbe balcony was covered with a carpet which soaked up tbe overflowing *626water. Seepage from the carpet through the floor of the balcony softened the plaster under the balcony. Suddenly this plaster gave way, and, to use plaintiff’s own words, “I thought the whole balcony was coming down behind me, it make so much fuss. I did not know what was going on at the second when it happened, and it startled me so I hit my leg on the back of the seat.” The plaintiff’s evidence further tended to show the door to the restroom was closed. The sound of running water could not be heard from the outside. Water could not be discovered from the outside, except by examination or stepping on the carpet. At the close of plaintiff’s evidence, motion for judgment of nonsuit was made and sustained. The plaintiff appealed.

LeRoy Scott and L. H. Ross for plaintiff, appellant.

Rodman & Rodman for defendant, appellee.

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