Pemberton v. City of Greensboro

Stacy, C. J.

It is not perceived tbat any barm bas come to tbe defendant from tbe court’s ruling, or tbat any injury is likely to result therefrom. Doubtless tbe plaintiffs made tbeir specifications as broad as tbey could, because tbey were aware tbat, in filing a bill of particulars, tbey would be restricted in tbeir proof “to tbe items therein set down.”

Gruber v. Eubanks, 199 N. C., 335 , 154 S. E., 318 ;

Ham v. Norwood, 196 N. C., 762 , 147 S. E., 291 ;

Gore v. Wilmington, 194 N. C., 450 , 140 S. E., 71 ;

S. v. Wadford, 194 N. C., 336 , 139 S. E., 608 ;

S. v. Lea, 203 N. C., 13 , 164 S. E., 737 .

But considering tbe several grounds of tbe motion in tbe order named :

First: As we understand it, but a single cause of action is set out in tbe complaint, hence tbe first prayer of tbe motion was properly denied. It is true, several elements of damages are alleged, but this does not constitute as many separate and distinct causes of action. C. S., 506; Rule 20, sec. 2, Rules of Practice, 200 N. C., 826 .

Second: Tbe motion to strike out paragraph 3 of tbe complaint was allowed in part and presented on tbe first appeal. 203 N. C., 514 , 166 S. E., 396 .

Third: In so far as tbe.order deals with tbe bill of particulars, it may be doubted whether it is appealable. C. S., 534;

Temple v. Western Union, ante, 441;

Townsend v. Williams, 117 N. C., 330 , 23 S. E., 461 . Compare Ellis v. Ellis, 198 N. C., 767 , 153 S. E., 449 .

Tbe court below was of opinion tbat tbe matters and specifications, now assailed, could better be determined by rulings upon tbe competency of tbe evidence, if and when offered, than by undertaking to chart tbe course of tbe trial by passing upon undenied allegations.

S. v. Lumber Co., 199 N. C., 199 , 154 S. E., 72 . In this, we see no error. There may be no evidence offered on some of tbe items, which would ipso facto eliminate them. Then, why debate them in advance of tbe necessity of doing so?

It is not to be inferred, however, from tbe failure of tbe court presently to strike out some of tbe specifications in tbe bill of particulars, tbat tbey are regarded as competent to be shown in tbeir entirety on tbe bearing. Tbe competency of tbe evidence will be determined when offered. Tbe proper measure of damages in such cases bas been tbe subject of a number of decisions, and these may be called to tbe attention of tbe court on tbe trial if desirable.

Affirmed.