Lowe's of Raleigh, Inc. v. Worlds

166 S.E.2d 517 (1969)

4 N.C. App. 293

LOWE'S OF RALEIGH, INC. v. Willis WORLDS and Lois Worlds.

No. 6923SC76.

Court of Appeals of North Carolina.

April 2, 1969.

*518 Ralph Davis, North Wilkesboro, for plaintiff appellee.

L. Austin Stevens, Smithfield, for defendant appellant.

FRANK M. PARKER, Judge.

The sole question presented by this appeal is whether the complaint stated a cause of action against the appealing defendant, Lois Worlds. A default judgment admits only the averments in the complaint, and the defendant may still show that such averments are insufficient to warrant the plaintiff's recovery. Beard v. Sovereign Lodge, W.O.W., 184 N.C. 154, 113 S.E. 661. A complaint which fails to state a cause of action is not sufficient to support a default judgment for plaintiff. G.S. § 1-211; Cohee v. Sligh, 259 N.C. 248, 130 S.E.2d 310; Presnell v. Beshears, 227 N.C. 279, 41 S.E.2d 835. Accordingly, if the complaint in the present action failed to state a cause of action as against Lois Worlds, the default judgment against her cannot be supported and must be set aside even without any showing of mistake, surprise or excusable neglect.

It should be noted that the complaint complains of the defendant in the singular, and alleges that plaintiff sold and delivered to the defendant upon his promise to pay, and that the defendant is indebted to the plaintiff. The only allegation in the complaint relating to both defendants is in paragraph 2, alleging that they are residents of Johnston County. The complaint clearly stated a cause of action against a male defendant. It stated no cause of action against a female defendant.

Courts may take judicial notice of facts of general knowledge. 3 Strong N.C. Index 2d, Evidence, § 3, p. 596. This includes taking judicial notice of the fact that certain names are ordinarily given only to one of the sexes and that the gender of a personal pronoun may identify sex. Long ago the North Carolina Supreme Court held that identification in a bill of indictment of the victim of the crime as "Mary Ann Taylor," along with the use of the personal pronoun "her," was sufficient to indicate that the victim was a female. State v. Farmer, 26 N.C. 224. The same decision had been reached in an *519 even earlier case in which the victim had been identified as "Mary M. Cook" and the personal pronoun "her" had been used in the bill of indictment. State v. Goings, 20 N.C. 289. Courts in other states have similarly held that certain names designate females. People v. Mansfield, 181 Ill.App. 710 (Minnie); People v. De Mas, 173 Ill.App. 130 (Lena); People v. Pizzi, 170 Ill.App. 537 (Ethel); State v. Hussey, 7 Iowa 409 (Nancy); Tillson v. State, 29 Kan. 452 (Ruth); Taylor v. State, 86 Neb. 795, 126 N.W. 752 (Pearl); Taylor v. Commonwealth, 61 Va. 825 (Ellen and Frances). A Texas Court has held that use in an information of the personal pronoun "his" sufficiently identified the defendant as being a male and use of the personal pronoun "her" sufficiently identified the victim as being female. Slawson v. State, 39 Tex.Cr.R. 176, 45 S.W. 575.

It is a matter of general common knowledge that the name "Willis" is ordinarily given only to a male and the name "Lois" is ordinarily given only to a female. The name "Willis" is included in a list of common English given names for men found in Webster's New Collegiate Dictionary, 1961 Edition, p. 1134, and the name "Lois" is included in a similar list of given names for women, Id., p. 1136. Accordingly, this Court may take judicial notice in this case that "Willis Worlds" refers to a male and that "Lois Worlds" refers to a female. Since all allegations in plaintiff's complaint, other than those in paragraph 2 which related solely to the place of residence of the defendants, refer to a single defendant and since the personal pronoun "his" is used in paragraph 3 in alleging that the defendant had promised to pay for the goods which plaintiff had sold and delivered, the essential allegations which stated a cause of action referred only to the male defendant, Willis Worlds. There were no allegations as to any type of relationship between the defendant Willis Worlds and the defendant Lois Worlds through which Lois could be held liable for his promise to pay. The complaint failed to state a cause of action against the defendant Lois Worlds and cannot support a default judgment against her. She is entitled to have the default judgment set aside insofar as it affects her. The order appealed from is reversed and this case remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

MALLARD, C. J., and BRITT, J., concur.