Action for Damages — Pleading — Variance Between Allegation and Proof — Nonsuit.
1. Where, after the testimony of plaintiff was introduced on the trial of an action, the trial judge intimated that the plaintiff could not recover, and there was no motion to amend, it will be assumed on appeal that the intimation was made with reference to the cause of action stated in the complaint.
2. In an action against V. for damages for an injury resulting from the wrongful act of B. the complaint alleged that the act was committed "under the superintendence, control, management and direction of the defendant": Held that the allegation clearly imports that the defendant was sued for the conduct of B. as the defendant's servant, and not otherwise.
3. When, in such case, the testimony disclosed that B. was not the servant of the defendant, but an independent contractor, the cause of action set forth in the complaint was not sustained, and, as the plaintiff did not ask to be allowed to amend, the intimation of the trial judge that the plaintiff could not recover was correct.
SHEPHERD, C. J.
We have given this case a very careful consideration, but in view of the variance between the allegations and the proof, which in itself affords a sufficient ground for the intimation of his Honor, we have concluded to refrain from the discussion of the interesting questions so elaborately argued by counsel, and which go to the merits of the controversy, when they shall be properly presented to the court. Although we are prepared to pass upon these questions, yet as the case is of a peculiar character, and another action may be brought in which the testimony may present new and varying phases of fact, we have concluded that the course indicated is the safer one to pursue in the disposition of this appeal. After the testimony of the plaintiff was introduced, the court intimated that the plaintiff could not recover. As there was no motion to amend, we must, of course, assume that the intimation was made with reference to the cause of action stated in the complaint, and if we turn to that pleading it will be seen that it is repeatedly alleged that the act of Britt, for which the defendant is sued, was committed "under the superintendence, control, management and direction of the defendant." This language is so used that it distinctly qualifies and controls any matter alleged in the nature of inducement or explanation, which sometimes, under the very liberal construction of code pleading, is held sufficient to avoid a variance, and it clearly imports that the (563) defendant is sued for the conduct of Britt, as the defendant's servant, and not otherwise. The testimony discloses that Britt was not the servant of the defendant, but an independent contractor, and as the principles of law upon which the defendant may be liable for the conduct of Britt in these distinct capacities are, in some very essential particulars, widely different, and really constitute different causes of action, we have but little hesitation in deciding that the evidence fails to sustain the cause of action set forth in the complaint. Abernathy v. Seagle, 98 N.C. 553; Pendleton v. Dalton, 96 N.C. 507; Willis v. Branch, 94 N.C. 142; Browning v. Berry, 107 N.C. 231; Brittain v. Daniel, 94 N.C. 781. Doubtless his Honor would have allowed an amendment, but as the plaintiff did not ask for it, and was content to rest his case upon the present complaint, we think the intimation that the plaintiff could not recover was correct, and that the judgment should, therefore, be
Affirmed.
Cited: Talley v. Granite Quarries Co., 174 N.C. 447.