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Morrow v. Kings Department Stores Inc.

Filed: May 4, 1982.

HARRIET LEE MORROW, APPELLANT
v.
KINGS DEPARTMENT STORES, INC., AND BURNS INTERNATIONAL SECURITY SERVICES, INC., APPELLEES



Appeal by plaintiff from Martin, Judge. Order entered 29 April 1981 in Superior Court, Orange County. Heard in the Court of Appeals 12 February 1982.

Whichard, Judge. Judges Clark and Arnold concur.

Whichard

I.

Plaintiff sought compensatory and punitive damages from defendants on the basis of the following allegations:

4.

That on or about May 3, 1980, plaintiff entered the Kings Department Store located on Hillsborough Road, Durham, North Carolina. Plaintiff purchased several items from said department store, including two shirts, a pair of shoes and a housecoat. After paying for said items, plaintiff proceeded to leave said department store. Upon approaching the exit door, plaintiff was stopped by a man dressed in the uniform of a security guard. Said man removed a shirt from the bag being carried by the plaintiff which contained the items plaintiff had purchased from said department store.

5.

Plaintiff is informed and believes, and upon such information and belief alleges that the man who removed the shirt from the bag being carried by the plaintiff as alleged above was an employee of defendant, Burns International Security Services, Inc.

6.

That plaintiff is informed and believes, and upon such information and belief alleges that at the time the acts complained of above occurred, the man who stopped the plaintiff and removed the shirt from her bag was acting as an agent of and under the supervision and control of the defendant, Kings Department Store, Inc.

7.

That as a result of the acts complained of above, plaintiff suffered severe emotional distress and great embarrassment in that the acts complained of above occurred before numerous onlookers, including a friend of the plaintiff's.

8.

That plaintiff never recovered the shirt taken from her by the man dressed as a security guard as alleged above.

Defendants moved to dismiss under G.S. 1A-1, Rule 12(b)(6), for failure to state a claim upon which relief can be granted. The trial court ruled that the complaint stated a claim "for conversion of one shirt," but failed to state a claim "for severe emotional

distress and great embarrassment" or for punitive damages. It ordered "that the . . . prayer for punitive damages and damages for severe emotional distress and great embarrassment be dismissed."

Plaintiff appeals, and we affirm.

II.

Plaintiff contends G.S. 1A-1, Rule 12(b)(6), does not allow dismissal of some claims if other claims in the complaint are not similarly subject to dismissal. The contention is without merit. A party may state in one pleading "as many separate claims . . . as he has . . ." G.S. 1A-1, Rule 8(e)(2). G.S. 1A-1, Rule 12(b), permits assertion by motion of a defense to " a claim for relief in any pleading." (Emphasis supplied.) It does not require that the assertion be to " the claims for relief." It appears the clear intent of the rule to permit dismissal of some claims without requiring dismissal of all. Our Supreme Court implicitly approved such partial dismissals in Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979), and Newton v. Insurance Co., 291 N.C. 105, 229 S.E.2d 297 (1976).

III.

Plaintiff further contends her complaint suffices to allow recovery for emotional distress under one or more of the following "legal theories": assault, battery, slander, intentional infliction of mental suffering, and invasion of privacy. The contention requires examination of the complaint in light of the ...


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