¶1*321 J. Harvey Turner, Kinston, for plaintiffs.
¶2Marshall, Williams, Gorham & Brawley, by Ronald H. Woodruff, Wilmington, for defendant.
¶3ROBERT M. MARTIN, Judge.
¶4The only question presented by the appeal is whether the court erred in granting defendant's motion to dismiss the complaint under Rule 12(b)(6) for failure to state a claim upon which relief could be granted.
¶5In discussing Rule 12(b)(6), Justice Sharp, in Sutton v. Duke,277 N.C. 94, 105-06, 176 S.E.2d 161, 168 (1970), stated:
At the beginning of this opinion we noted that the motion to dismiss, which tested "the legal sufficiency of the complaint," performed a function of the demurrer under the former practice. The motion to dismiss, however, will only be allowed when, under the former practice, a demurrer would have been sustained because the complaint affirmatively disclosed that the plaintiff had no cause of action against the defendant.
¶6In White v. White,296 N.C. 661, 667, 252 S.E.2d 698, 702 (1979), Justice Exum stated:
The only purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of the pleading against which it is directed. [Citation omitted] In deciding such a motion the trial court is to treat the allegations of the pleading it challenges as true. [Citation omitted] "The function of a motion to dismiss is to test the law of a claim, not the facts which support it." Niece v. Sears, Roebuck & Co.,293 F.Supp. 792, 794 (N.D.Okl.1968) (applying Federal Rule 12(b)(6)). Resolution of evidentiary conflicts is thus not within the scope of the Rule.
¶7In O'Neill v. Bank,40 N.C.App. 227, 232, 252 S.E.2d 231, 235 (1979), speaking through Hedrick, J., we held:
In North Carolina a complaint should not be dismissed for failure to state a claim upon which relief can be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. A complaint may be dismissed on motion if clearly without any merit; and this want of merit may consist in an absence of law to support a claim, or in the disclosure of some fact that will necessarily defeat the claim. A complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts that could be proved in support of the claim. [Citations omitted]
¶8See Alltop v. Penney Co.,10 N.C.App. 692, 179 S.E.2d 885, cert. denied279 N.C. 348, 182 S.E.2d 580 (1971).
¶9The action is basically one for medical malpractice, sounding in negligence and *322 breach of contract. Plaintiffs' complaint adequately stated a claim for relief cognizable under existing legal principles of this jurisdiction. Similar complaints, alleging negligence and breach of contract, have been found sufficient in other jurisdictions. Jackson v. Anderson (Fla.App.) 230 So.2d 503 (1970); Martineau v. Nelson,311 Minn. 92, 247 N.W.2d 409 (1976); Vaughn v. Shelton (Tenn.App.) 514 S.W.2d 870 (1974).
¶10It was improper to dismiss the action on defendant's Rule 12(b)(6) motion.
¶11Reversed.
¶12HEDRICK and WELLS, JJ., concur.
¶13WELLS, Judge, concurring:
¶14To the extent to which the majority opinion recognizes plaintiffs' claim for relief for recovery of fees paid to defendant, expenses incurred due to pregnancy and the delivery of the child, and for pain and suffering to the feme plaintiff due to the pregnancy and birth, occasioned or contributed to by defendant's negligence or breach of contract, I concur.