David HALL, Plaintiff,
v.
Zelma Farrish POTEAT and Robert L. Satterfield, Guardian ad Litem of Charlie Jennings, Jr., Original Defendants, and Donald M. Terrell, by his Guardian ad Litem, Mrs. Evelyn Terrell, Additional Defendant.
No. 737.
Supreme Court of North Carolina.
June 15, 1962.*926 Booth, Osteen, Upchurch & Fish, Greensboro, for plaintiff appellant.
Haywood & Denny and George W. Miller, Jr., Durham, for original defendants appellees.
BOBBITT, Justice.
The rule is well established that judgment of nonsuit is proper when there is a fatal variance between a plaintiff's allegata and probata. Proof without allegation is no better than allegation without proof. A plaintiff must make out his case *927 secundum allegata. He cannot recover except on the case made by his pleading. Vickers v. Russell, 253 N.C. 394, 117 S.E.2d 45; Lucas v. White, 248 N.C. 38, 102 S.E. 387; Wilkes Poultry Co. v. Equipment Co., 247 N.C. 570, 101 S.E.2d 458, and cases cited. Whether the variance is to be deemed material (fatal) must be resolved in the light of the facts of each case. Spaugh v. City of Winston-Salem, 249 N.C. 194, 197, 105 S.E.2d 610.
The ground on which the court granted the motion of original defendants for judgment of nonsuit does not appear. However, as indicated below, plaintiff's evidence tends to show a basic factual situation different from that alleged in the complaint.
The sole proximate cause of the (first) collision, according to plaintiff's positive and repeated allegations, was the fact that Jennings, without giving a proper hand or mechanical signal and without keeping a proper lookout, suddenly drove the 1952 Ford from the right-hand shoulder into the lane for westbound traffic directly into plaintiff's path when plaintiff had absolutely no time in which to stop and avoid striking the 1952 Ford. Nothing in the original complaint suggests there were no lights on the 1952 Ford or that plaintiff did not see it when it made such sudden movement from the right-hand shoulder into the lane for westbound traffic.
The amendment, permitted "prior to the reading of the pleadings," alleged Jennings drove the 1952 Ford "on a public highway * * * during the nighttime without any lights on his automobile * * *." This amendment, permitted over their objection, advised original defendants for the first time plaintiff contended there were no lights on the 1952 Ford. Be that as it may, while the amendment alleged a new specification of negligence, it did not amend in any manner plaintiff's original factual allegations as to the proximate cause of the collision.
According to plaintiff's testimony: The 1952 Ford was twenty to thirty feet in front of him, "sitting still," when he first saw it. It had no lights. Plaintiff "had in mind" to pull out and pass the 1952 Ford but did not do so because a tractor-trailer, then two hundred feet away, was approaching in the lane for eastbound traffic. He decided to stop, put on his brakes and struck the rear of the 1952 Ford. "The car (presumably plaintiff's 1959 Ford) was not damaged greatly in the first collision."
Plaintiff's positive and repeated testimony is that the 1952 Ford was stopped, without lights, in the lane for westbound traffic when he first saw it. Nothing in his testimony supports his positive and repeated factual allegations that Jennings, without giving a proper hand or mechanical signal and without keeping a proper lookout, suddenly drove the 1952 Ford from the right-hand shoulder onto the lane for westbound traffic directly into plaintiff's path.
There was evidence the 1952 Ford, prior to the (first) collision, had been on the right shoulder. Parnell testified to statements made by defendant Jennings at the scene of the collisions. Jennings then stated, according to Parnell, that he pulled onto the right-hand shoulder where two passengers in his car got out; that his lights were on; that, when he pulled back onto the highway, he saw plaintiff's lights some two hundred to three hundred feet back; and that "he was driving 20 to 25 miles per hour when the Hall car ran into his car." Jennings' brother, a defense witness, testified that, when he and another passenger got out of the 1952 Ford, defendant Jennings drove off, headed west; and that he and his fellow passenger had walked east on their left side of the highway about 150 feet when he heard the noise from the (first) collision. In this connection, the fact that this evidence tends to contradict the testimony of plaintiff is immaterial. The significant fact is that it tends to show defendant Jennings had entered upon the lane for westbound traffic when plaintiff was an appreciable distance away and had proceeded some distance *928 therein before the 1952 Ford was struck by plaintiff's 1959 Ford. Hence, this evidence does not support plaintiff's factual allegations with reference to the proximate cause of the first collision.
The evidence with reference to the second collision is not pertinent to this appeal. Nor do we deem it necessary to review the evidence pertinent to whether plaintiff was guilty of contributory negligence as a matter of law. Decision is based on the ground there is a material and fatal variance between plaintiff's factual allegations as to the proximate cause of the (first) collision and plaintiff's evidence with reference thereto.
Conceding plaintiff's testimony, when considered in the light most favorable to him, was sufficient to support a finding that the (first) collision was proximately caused by the negligence of defendant Jennings, it was not sufficient to support a finding that it was proximately caused by the negligence of the original defendants as alleged in the complaint. "Plaintiff must prove his case in conformity with the facts he alleges to create liability." Bundy v. Belue, 253 N.C. 31, 116 S.E.2d 200. Confronted by the material variance between plaintiff's allegations and proof, the court below properly entered judgment of involuntary nonsuit.
It is noted that judgment of involuntary nonsuit for material variance between allegata and probata does not preclude plaintiff from instituting a new action. Vickers v. Russell, supra.
In view of the ground of decision, we need not consider whether the complaint sufficiently alleges that defendant Jennings was the agent of defendant Poteat "at the time and in respect of the very transaction out of which the injury arose." Whiteside v. McCarson, 250 N.C. 673, 678, 110 S.E.2d 295, 298, and cases cited; Aiken v. Sanderford, 236 N.C. 760, 73 S.E.2d 911, and cases cited; Lynn v. Clark, 252 N.C. 289, 113 S.E.2d 427, and cases cited.
On the ground stated, the judgment of involuntary nonsuit, as to plaintiff's action against the original defendants, is affirmed. It is noted that the additional defendant is not a party to this appeal.
Affirmed.