Gillikin v. Ohio Farmers Indemnity Company , 254 N.C. 250 ( 1961 )

118 S.E.2d 605 (1961) 254 N.C. 250

C. T. GILLIKIN, Administrator of Louie Elmer Gillikin, Deceased, and Next of Kin to Louie Elmer Gillikin, Deceased,
v.
OHIO FARMERS INDEMNITY COMPANY.

No. 94.

Supreme Court of North Carolina.

March 8, 1961.

Charles L. Abernethy, Jr., New Bern, for plaintiff-appellant.

Barden, Stith & McCotter, New Bern, for defendant-appellee.

RODMAN, Justice.

For the reason given in Gillikin v. Springle, N.C., 118 S.E.2d 611, plaintiff has not stated a cause of action entitling him to damages because of the asserted conspiracy to defeat plaintiff's right of action for damages for wrongful death by perjured testimony.

The mere fact that defendant insured the automobile operated by plaintiff's intestate and the truck owned by Springle did not create a fiduciary relationship between the parties prohibiting defendant from making such investigation as it deemed necessary to determine whose negligence proximately caused the collision and resulting injuries. It was bound by contract to pay, within the limits of its policy, such damages as might be recovered against its insured because of such negligence. Plaintiff does not specifically allege that judgment has been rendered against him because of the negligence of his intestate. The absence of such allegation might be treated as a defective statement of a good cause of action, but when all of the allegations are considered, we think it apparent that plaintiff does not intend to allege that he has suffered damages by reason of defendant's failure to discharge its contractual obligations and pay counsel fees incurred in defending the action against plaintiff, or such judgment as may have been obtained against him.

Nor does plaintiff assert any right of action based upon the failure of defendant to discharge its contract and provide counsel to represent him in the litigation with Springle. His complaint is that it conspired to defeat his right of action and failed to provide him with counsel to sue Springle to recover damages for wrongful death.

Because of the failure to state a cause of action, the court properly allowed the motion to dismiss.

Affirmed.