Opinion
(Filed 18 March, 1936.)
Pleadings I a —
The trial court may refuse to strike out certain paragraphs of the complaint on motion when the matter may be better determined by rulings upon the competency of evidence, if and when offered.
APPEAL by the defendant from an order entered by Harding, J., at November Term, 1935, of HENDERSON, allowing in part and disallowing in part defendant's motion to strike from the complaint various and sundry allegations therein contained. Affirmed.
R. L. Whitmire and O. B. Crowell for plaintiff, appellee.
Redden Redden for defendant, appellant.
This is an action to recover damages for the death of the plaintiff's intestate, alleged to have been caused by the wrongful and negligent acts of the defendant in purporting to treat said intestate while ill with diphtheria. The complaint is rather long and elaborate and the judge of the Superior Court held that some of the allegations of the complaint assailed by the motion should be stricken therefrom. To this portion of the order there was no exception. The judge, however, was evidently of the opinion that the other allegations of the complaint assailed by the motion to strike could better be determined by rulings upon the competency of the evidence, if and when offered, than by undertaking to chart the course of the trial by passing upon allegations as yet undenied, and for this reason disallowed the motion in part. In this we see no error. Pemberton v. Greensboro, 205 N.C. 599. The order appealed from is accordingly
Affirmed.