Mercer v. Hilliard , 249 N.C. 725 ( 1959 )

107 S.E.2d 554 (1959) 249 N.C. 725

George R. MERCER
v.
Ray B. HILLIARD and Montgomery Ward Company, Inc.

No. 249.

Supreme Court of North Carolina.

March 18, 1959.

Gardner, Connor & Lee, Wilson, for plaintiff, appellee.

Dupree & Weaver, Raleigh, and Lucas, Rand & Rose, Wilson, for defendants, appellants.

BOBBITT, Justice.

The sole ground of plaintiff's motion is that the facts alleged by defendants do not constitute a legal defense to plaintiff's action. In substance, if not in form, plaintiff's motion is a demurrer to defendants' "First Further Answer and Defense," in its entirety, and will be so considered. Hayes v. City of Wilmington, 243 N.C. 525, 91 S.E.2d 673; Etheridge v. Carolina Power & Light Co., 249 N.C. 367, 106 S.E.2d 560.

G.S. § 1-141, in pertinent part, provides: "The plaintiff may in all cases demur to an answer containing new matter, where, upon its face, it does not constitute a * * * defense; and he may demur to one or more of such defenses * * *, and reply to the residue." Williams v. Union County Hospital Ass'n, 234 N.C. 536, 67 S.E.2d 662; Jenkins v. Fields, 240 N.C. 776, 83 S.E.2d 908.

"A plea in bar is one that denies the plaintiff's right to maintain the action, and which, if established, will destroy the action." McIntosh, N. C. Practice & Procedure, § 523; Brown v. E. H. Clement Co., 217 N.C. 47, 6 S.E.2d 842; Solon Lodge No. 9 Knights of Pythias Co. v. Ionic Lodge, 245 N.C. 281, 95 S.E.2d 921.

An order or judgment which sustains a demurrer to a plea in bar affects a substantial right and a defendant may appeal therefrom. G.S. § 1-277; Shelby v. Charlotte Electric Ry., Light & Power Co., 147 N.C. 537, 61 S.E. 377. Rule 4(a), Rules of Practice in the Supreme Court, 242 N.C. 766, when otherwise applicable, limits the right of immediate appeal only in instances where the demurrer is overruled.

The facts alleged by defendants do not constitute either an adjudication or an acknowledgment that negligence on the part of Mrs. Mercer proximately caused the collision between the Mercer and Hilliard cars. Penn Dixie Lines v. Grannick, 238 N.C. 552, 78 S.E.2d 410.

The factual situation here illustrates the soundness of the reasons stated by Ervin, J., in support of the decision in Penn Dixie Lines v. Grannick, supra. Mrs. Strickland's action in Wake Superior Court involved a small property claim. The Mercers were residents of Wilson County. Independent of questions relating to legal liability, the inconvenience and the expense of fighting the Strickland case would seem sufficient practical ground to induce the Mercers to effect a compromise settlement of Mrs. Strickland's claim. Moreover, if plaintiff preferred, by effecting a compromise settlement thereof, to eliminate Mrs. Strickland's small property damage claim, so that the respective rights of the Mercers and of defendants inter se would be adjudicated in the separate action then pending between them rather than as a subordinate feature of the Strickland case, they were at liberty to do so.

Defendants undertake to distinguish Penn Dixie Lines v. Grannick, supra, on the ground that no court action or judgment was involved therein. This factual distinction is immaterial. In both cases there was an out of court compromise settlement. Having received the compromise consideration, and having executed a full release, Mrs. Strickland was thereby precluded from prosecuting her action. The judgment of voluntary nonsuit was only an incident in the consummation of the out of court compromise settlement.

It is noteworthy that the compromise settlement was between Mrs. Strickland and the Mercers. Defendants do not allege that they or either of them participated therein in any way. If it absolved defendants from liability to Mrs. Strickland, to this extent defendants have reason to be well pleased.

Defendants contend, citing Steele v. Beaty, 215 N.C. 680, 2 S.E.2d 854, that the judgment was a retraxit rather than a simple judgment of voluntary nonsuit. In either event, it was not a judicial determination or adjudication of liability on the part of the Mercers. If a retraxit, its legal effect was to estop Mrs. Strickland from instituting another suit on the same cause of action.

The factual situations in Lumberton Coach Co. v. Stone, 235 N.C. 619, 70 S.E.2d 673, and in the cases cited therein, are stated and distinguished by Ervin, J., in Penn Dixie Lines v. Grannick, supra. Suffice to say, Penn Dixie Lines v. Grannick, supra, on which the present decision is based, is expressly approved.

Affirmed.