Opinion
(Filed 28 January, 1935.)
1. Negligence D a —
Where it is not alleged in the complaint that the negligence complained of was the proximate cause of the injury in suit, the complaint is subject to demurrer for failure to state a cause of action.
2. Appeal and Error A c —
Where a complaint fails to state a cause of action a demurrer ore tenus, although first interposed in the Supreme Court, will be sustained.
3. Appeal and Error J g —
Where a demurrer ore tenus interposed in the Supreme Court is sustained, questions of law presented by appellant's exception to the overruling of his written demurrers by the lower court need not be considered, and the case will be remanded with direction that it be dismissed, unless in apt time plaintiff moves for leave to amend. C. S., 515.
APPEAL by defendants from Hill, Special Judge, at June Special Term, 1934, of MECKLENBURG. Reversed.
John Newitt for plaintiff.
Bridgers Orr and W. S. Blackeney for defendants.
This is an action to recover damages for the death of plaintiff's intestate.
The defendants demurred in writing to the complaint on the grounds set out in their demurrer. The demurrer was overruled, and the defendants appealed to the Supreme Court.
When this appeal was called for hearing in this Court, the defendants demurred ore tenus to the complaint, on the ground that the facts stated therein are not sufficient to constitute a cause of action. This demurrer is sustained.
It does not appear from the complaint that the negligence of the defendants, as alleged therein, was the proximate cause of the death of plaintiff's intestate. The negligent construction or operation of the swing in Independence Park by the defendants furnishes no cause of action on which the plaintiff is entitled to recover damages for the death of his intestate, unless such construction or operation was the proximate cause of the death. There are no allegations in the complaint from which it appears that there was a causal connection between the construction or operation of the swing and the death of plaintiff's intestate. For this reason, no cause of action for actionable negligence is alleged in the complaint, and the demurrer ore tenus, although first interposed in this Court, must be sustained.
The questions of law presented by the written demurrer, and discussed in the briefs filed in this Court, have not been considered. The action is remanded to the Superior Court of Mecklenburg County, with direction that same be dismissed, unless within apt time the plaintiff moves for leave to amend his complaint. C. S., 515.
Reversed.