Jackson ex rel. Downing v. Jones ( 1968 )

Brock, J.

The defendants assign as error that the trial court erred in ordering that certain portions of defendants’ Second Further Answer shall not be read to or brought before the jury on voir dire in the trial of this action.

The defendants argue that the trial court should have allowed the motion to strike if the pleading is improper; and that since it was not stricken as improper, defendants are entitled to read and explain the pleadings to the jury.

The primary function of the pleadings is to state in a plain and intelligible manner the facts constituting the grounds of action or defense, so that (1) each side' of the controversy may know the other’s contention and prepare to meet it, that (2) the court may have a clear understanding of the controversy, and that (3) it may go into the record as a permanent memorial of the litigation. McIntosh, North Carolina Practice and Procedure, Second Edition, Vol. 1, p. 522. It is true that the general practice has been for attorneys to read the pleadings in open court in the presence of the jury, after the jury has been empanelled to try the case. But there is no requirement by statute, case law, or rule of court, that the pleadings must be read to the jury. Nor is it provided by any statute, case law, or rule of court, that a party has an unqualified right to read his pleadings to the jury. Pratt v. Bishop, 257 N.C. 486, 499, 126 S.E. 2d 597. It might be noted that, effective July 1, 1969, “Unless otherwise ordered by the judge, pleadings shall not be read to the jury.” (Emphasis added.) General Statutes of North Carolina, Chapter 1A, Article 3, Rule 7(d).

Our research discloses that numerous opinions of our Supreme Court have referred to a reading of the pleadings in the presence of the jury, but the only case we have found containing a pointed statement is Privette v. Privette, 230 N.C. 52, 51 S.E. 2d 925 (1949). In that case the Supreme Court was considering an appeal from an order of the judge affirming an order of the Clerk denying a motion to strike allegations from a motion made to the Clerk. In dismissing the appeal, the Court was pointing out the difference in the attempted appeal, and those appeals which had been allowed for the purpose of reviewing a ruling on a motion to strike from pleadings. The Court said: “The pleadings in a cause raise issues of fact to be decided by a jury, chart the course of the trial and, in large measure, determine the competency of evidence. They are to be read to the jury. If they contain irrelevant or impertinent averments not competent to be shown in evidence, a refusal to strike might impair or imperil the rights of the adversary party. For this reason this Court has entertained appeals from orders denying motions to strike allegations in pleadings.” Obviously this statement concerning the reading of pleadings to the jury was not necessary to the decision of the Court to dismiss the appeal. At most it was in explanation of why appeals from orders denying motions to strike from pleadings had been allowed by the Court. The statement was merely a recognition of the fact of the general practice in the Superior Courts of attorneys reading the pleadings in open court. According to Shepard’s North Carolina Citations, Privette has never been cited as authority that a party has an unqualified right to read his pleadings to the jury.

We hold that whether the pleadings, or any parts thereof, are to be read in open court in the presence of the jury is a matter to be determined by the trial judge in the exercise of his discretion.

The plea of the concurring negligence of the employer of the plaintiff and the fact of an award under The Workmen’s Compensation Act is a proper plea, and the trial court was correct in refusing to strike it. Poindexter v. Motor Lines, 235 N.C. 286, 69 S.E. 2d 495; Essick v. Lexington, 233 N.C. 600, 65 S.E. 2d 220. Such a plea is necessary to protect the defendants’ right to have the issue of the concurring negligence of plaintiff’s employer determined; and the plea is necessary for the purpose of bringing before the judge the fact of an award so that the judge can enter a proper judgment on the verdict. But it does not follow that defendants are entitled to read the allegations in question, or explain them, to the jury.

In their brief, defendants seek to distinguish Spivey v. Wilcox, 264 N.C. 387, 141 S.E. 2d 808, by pointing out that the statement of facts and the opinion make no mention of the case involving a plea of concurring negligence of plaintiff’s employer. An examination of the record on appeal in the Spivey case clearly reveals that such a plea was involved. In Spivey the following was said with respect to the evidence admitted at trial: “In his cross-examination of plaintiff’s doctor, counsel also brought out, over plaintiff’s objections, that the doctor had handled plaintiff’s case ‘as a Workmen’s Compensation matter’ and that plaintiff himself was not at the present time indebted to the doctor for any services rendered. This, too, was error. The obvious purpose of these references to Workmen’s Compensation benefits was to reduce the amount of the verdict in the event the case went to the jury.”

To allow the defendants to read in the presence of the jury, or explain to the jury, on voir dire, the allegations of the' paragraphs affected by Judge Brewer’s Order-would create as much mischief as allowing testimony before the jury of the fact of Workmen’s Compensation benefits.

The defendants argue strenuously that the jury cannot understand the full import of the issue of concurring negligence -unless they can have the fact of the interaction of -the Workmen’s Compensation benefits explained to them. This argument must fail.

The plaintiff is entitled to have assessed in'his action against the third party tort-feasor, if he is entitled to recover at all, a fair compensation for his injuries without regard to any benefits available or paid under Workmen’s Compensation. Spivey v. Wilcox, supra.

The Order of Judge Brewer is

Affirmed.

Mallard, C.J., and Britt, J., concur.