Brevard v. STATE FARM MUTUAL AUTOMOBILE INS. CO.

137 S.E.2d 837 (1964)

262 N.C. 458

W. W. BREVARD, Administrator of the Estate of Brenda Brevard (Taylor), formerly Brenda Brevard, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., a corporation.

No. 29.

Supreme Court of North Carolina.

September 23, 1964.

*839 William J. Cocke, Asheville, Prince, Jackson, Youngblood & Massagee, Hendersonville, for plaintiff appellant.

Carpenter, Webb & Golding, Charlotte, for defendant appellee.

DENNY, Chief Justice.

As we construe the complaint in this action, the plaintiff seeks to recover against the defendant based on the terms of the judgment entered in the action between the plaintiff and Meredith, Sr. and the administratrix of the estate of Meredith, Jr.

The mere fact that the plaintiff obtained a judgment against Meredith, Sr. does not necessarily obligate this defendant to pay such judgment, and nowhere in the complaint does the plaintiff set out the provisions contained in the insurance policies which he contends obligates the defendant to pay the unsatisfied portion of the plaintiff's judgment.

If the defendant is liable to plaintiff, its liability accrues under the provisions set out in the insurance contracts between the defendant and its insured.

The defendant contends that the plaintiff has failed to allege facts sufficient to bring himself within the coverage provided in the insurance policies involved in any respect.

It is said in Blashfield, Cyclopedia of Automobile Law and Practice, Volume 6, Part 2, Section 4113.15: "It is essential for plaintiff, in his pleading, to allege a loss within the coverage of the insurance contract. He must allege a loss for which he is entitled to be indemnified. * * *

"The plaintiff should do more than merely incorporate in his pleading allegations in the nature of legal conclusions indicating that the loss sued for was covered by the contract of insurance, and ordinarily he should set out facts sufficient to enable the court to decide that his claim is included within the coverage of the policy or contract. * *"

In Strong's North Carolina Index, Volume 3, page 600, Pleadings, it is said: "* * * (A) cause of action consists of the facts alleged in the complaint, and plaintiff must allege such facts necessary to constitute his cause of action so as to disclose the issuable facts determinative of plaintiff's right to relief. And recovery must be had, if at all, on the theory of liability set forth in the complaint. * * * Mere allegation of the legal conclusion which the pleader conceives should be drawn from the evidence he intends to offer is insufficient. * * *" Broadway v. Town of Asheboro, 250 N.C. 232, 108 S.E.2d 441; Hinton v. Whitehurst, 214 N.C. 99, 198 S.E. 579; Baker v. Atlantic Coast Line R. R., 205 N.C. 329, 171 S.E. 342

In an action to recover under an insurance policy, the burden is on the plaintiff to allege and prove coverage. On the other hand, the burden of showing an exclusion from coverage is on the insurer. Abernethy v. Hospital Care Ass'n, 254 N.C. 346, 119 S.E.2d 1; Thomas & Howard Co. of Selby, Inc. v. America Mutual Liability Insurance Co., 241 N.C. 109, 84 S.E.2d 337; Bowen v. Darden, 233 N.C. 443, 64 S.E.2d 285.

In Bowen v. Darden, supra, this Court pointed out that a cause of action *840 upon which a plaintiff chooses to rely should be stated in the complaint "in a clear and concise manner, G.S. § 1-122, so that the defendants will not be left in doubt as to how to answer and what defense to make. Hussey v. Norfolk S. R. R., 98 N.C. 34, 3 S.E. 923. The pleadings must raise the precise issues which are to be submitted to the jury, Hunt v. Eure, 189 N.C. 482, 127 S.E. 593, so that the court itself may not be left in a quandary as to the cause of action it is trying. King v. Coley, 229 N. C. 258, 49 S.E.2d 648."

"The rule of liberal construction does not require or permit us to read in the complaint allegations which are not there." Carolina Builders Corp. v. New Amsterdam Casualty Co., 236 N.C. 513, 73 S.E.2d 155.

A demurrer admits as true the allegations of the facts contained in the complaint but does not admit inferences or conclusions of law. Stamey v. Rutherfordton Membership Corp., 247 N.C. 640, 101 S.E.2d 814; Freel v. Center, Inc., 255 N.C. 345, 121 S.E.2d 562.

In our opinion, the general allegations in the complaint in this action, to the effect that the policies involved herein "covered the named assured Harley Watson Meredith for the liability rising out of the aforesaid judgment," constitutes a conclusion of law and that such conclusion is not admitted by the demurrer.

The case of Hall v. Harleysville Mutual Casualty Co., 233 N.C. 339, 64 S.E.2d 160, did not involve a controversy over the ownership of the automobile, nor the question as to whether or not it was covered by the policy issued by the defendant. In the Hall case the motor vehicle involved in the collision by reason of which the third party plaintiff recovered her judgment, was the particular motor vehicle described in the policy. Such is not the case in the present action. Plaintiff does not allege that either of the automobiles described in the policies involved was involved in the accident out of which the plaintiff's cause of action arose, but alleges that the automobile in which Brenda Brevard, plaintiff's intestate, was riding was involved in a collision with a 1957 Ford automoble which was being driven not by the insured Meredith, Sr. but by Meredith, Jr.

In our opinion, the ruling of the court below should be sustained.

Affirmed.