The demurrer filed by the plaintiff to the defendant’s further defense and cross-action is based upon his contentions that the defendant’s pleadings do not state facts sufficient to constitute a defense against the plaintiff’s action upon grounds of separation as alleged in the complaint, and do not state facts sufficient to constitute an action against the plaintiff for damages as prayed or the suit money demanded by her counsel.
This brings the plaintiff squarely within the succinct statement in 3 Strong’s N. C. Index, Pleadings, Sec. 19: “The same rules apply to a demurrer to a counterclaim or cross-action set up in the answer (as apply to a complaint), and a demurrer to the counterclaim must be overruled if sufficient facts can be gathered from the entire answer to entitle the defendant to some relief, notwithstanding that the answer fails to state separately the matters relied upon as defenses and the matters relied on for affirmative relief.”
And in Pearce v. Pearce, 226 N.C. 307, 37 S.E. 2d 904, the Court said: “The demurrer will not be sustained if facts sufficient to entitle her to some relief can be gathered therefrom”.
In the same section Strong says: “If the complaint, in any portion of it, or to any extent, presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, it will survive the challenge of a demurrer based on the ground that it does not allege a cause of action. It is sufficient if the facts alleged entitle plaintiff to some relief, even though they are insufficient to entitle plaintiff to the relief prayed or to relief upon another theory of liability. Thus where the complaint alleges several causes of action, a general demurrer must be overruled if any one of the causes is sufficiently stated.”
• The above would, of course, apply to a demurrer to a counterclaim or cross-action.
“It is a well established rule in this jurisdiction that a complaint is sufficient to withstand a demurrer if it in any part or to any extent presents a cause of action, or if sufficient facts in support of a cause of action can be fairly gathered therefrom. Hoke v. Glenn, 167 N.C. 594, 83 S.E. 807; Mills Co. v. Shaw, Comr. of Revenue, *446 supra; Brewer v. Wynne, 154 N.C. 467, 70 S.E. 947. It is also held that a complaint which alleges two or more causes of action is good against a demurrer, if only one cause of action is sufficiently stated. Meyer v. Fenner, 196 N.C. 476, 146 S.E. 82; Best v. Best, 228 N.C. 9, 44 S.E. 2d 214.” Deaton v. Deaton, 234 N.C. 538, at 540, 67 S.E. 2d 626.
Under G.S. 52-5: “A husband and wife have a cause of action against each other to recover damages sustained to their person or property as if they were unmarried.” Referring to this statute, we said in Shaw v. Lee, 258 N.C. 609, 129 S.E. 2d 288: “At common law one spouse could not sue the other for personal injuries negligently inflicted. Our Legislature by statute modified the common law and permitted the wife'to sue the husband for injuries tortiously inflicted.” See also 2 Strong’s Index, Husband and wife, § 9.
Paragraph VI of the defendant’s further defense and cross-action says in part: “That the plaintiff has threatened on numerous occasions to kill the defendant’s ward and that on one occasion knocked the defendant’s ward across a counter at the place of business the plaintiff runs, and on numerous occasions he has assaulted the defendant’s ward and more particularly on or about the 1st day of February, 1962, he assaulted the defendant’s ward.”
The defendant has thus stated a good cause of action against the plaintiff for an assault upon her, and the demurrer cannot be sustained as to that phase of the pleadings, and for the reasons earlier stated the demurrer must be overruled.
It will be noted that the question of whether a cross-action for an assault is appropriate as a counterclaim in an action for divorce is not presented and, therefore, not determined.
Plaintiff also demurred upon the ground that at the time the cross-action was filed another action begun by the defendant against the plaintiff and for substantially the same purported cause of action, was pending. Since this does not appear from the pleadings, it is not appropriate ground for demurrer at this time.
The defendant in a motion says that the attorneys representing her in this action have been awarded no attorneys’ fees, and that her application therefor has been ignored. She excepts to the court’s failure to rule on this motion. Upon these pleadings the court should take appropriate action without delay.
Inasmuch as the action instituted by the wife for support which is referred to in plaintiff’s affidavit was instituted prior to this action, it would appear that it should have preference in time of trying it over this proceeding. The results of that trial would have substantial bearing upon the present action.
*447For the reasons above stated, the ruling of the court in sustaining the plaintiff’s demurrer to defendant’s cross-action is hereby
Reversed.