¶1There was no error in the judgment overruling the demurrer as to all the defendants other than John Mitchell, individually. No cause of action is stated in the complaint as to this defendant. The action was properly dismissed as to him.
¶2This is not an action against the State of North Carolina, or against the appealing defendants as agencies of the State. The State of North Carolina, in its capacity as a sovereign, has no interest, direct or remote, in the cause of action alleged in the complaint. For that reason, Carpenter v. R. R., 184 N. C., 400, 114 S. E., 693, has no application in the instant case:
¶3The Corporation Commission of North Carolina, at the date of the injuries suffered by plaintiff, was, and the defendant, Gurney P. Hood, Commissioner of Banks, as the successor of said Commission, is now in possession of the assets of the Commercial Bank and Trust Company, of Gastonia, N. 0., for purposes of liquidation as provided by statute. The said Commission was, and the said defendant is now, a statutory receiver of the said Commercial Bank and Trust Company, with all the rights and liabilities of a receiver appointed by a court of competent jurisdiction. Blades v. Hood, Commissioner of Banks, 203 N. C., 56, 164 S. E., 823; In re Trust Co., 198 N. C., 783, 153 S. E., 452. A recovery in this action by the plaintiff will be paid by the defendant, Gurney P. Hood, Commissioner of Banks out of the assets in his hands as statutory receiver of the Commercial Bank and Trust Company, and not otherwise.
¶4It cannot be held as a matter of law that on the facts alleged in the complaint, the plaintiff by his own negligence contributed to his injuries as alleged in the complaint. Ordinarily, where there is evidence tending to support this defense, the evidence must be submitted to the jury. It is rarely the case that the Court can hold as a matter of law, upon the allegations of the complaint, or upon evidence offered by the plaintiff, that plaintiff, who has been injured by the negligence of the defendant, cannot recover damages resulting from such injuries, because by his own negligence he contributed to his injuries. It is sufficient to say that this is not such a case. The decision in Scott v. Telegraph Company, 198 N. C., 795, 153 S. E., 413, was made on a fact situation altogether different from that in the instant case. The judgment is •
¶5Affirmed.