Bizzell v. Great American Insurance Company , 248 N.C. 294 ( 1958 )

103 S.E.2d 348 (1958) 248 N.C. 294

William S. BIZZELL
v.
GREAT AMERICAN INSURANCE COMPANY.

No. 457.

Supreme Court of North Carolina.

April 30, 1958.

Bailey & Bason, Raleigh, for plaintiff.

Joyner & Howison and Allen & Hipp, Raleigh, for defendant.

Atty. Gen. George B. Patton, Asst. Atty. Gen. T. W. Bruton, and Ehringhaus & Ellis, Raleigh, amici curiae.

JOHNSON, Justice.

Ordinarily, the courts will not pass upon the constitutionality of a statute in an action in which there is no actual antagonistic interest between the parties, or where it appears that the parties are as one in interest and desire the same relief. United States v. Johnson, 1943, 319 U.S. 302, 63 S. Ct. 1075, 87 L. Ed. 1413; Chicago & Grand Trunk Railway Co. v. Wellman, 1892, 143 U.S. 339, 12 S. Ct. 400, 36 L. Ed. 176; C. I. O. v. McAdory, 1945, 325 U.S. 472, 65 S. Ct. 1395, 89 L. Ed. 1741; Moritz v. United Brethrens Church, 244 A.D. 121, 278 N.Y.S. 342.

In C. I. O. v. McAdory, supra, it is said [325 U.S. 472, 65 S. Ct. 1397]: "The Court will not pass upon the constitutionality of legislation in a suit which is not adversary, Bartemeyer v. State of Iowa, 18 Wall. 129, 134, 135, 21 L. Ed. 929; Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 12 S. Ct. 400, 36 L. Ed. 176; Atherton Mills v. Johnston, 259 U.S. 13, 15, 42 S. Ct. 422, 66 L. Ed. 814; Coffman v. Breeze Corporations, 323 U.S. 316, 324, 65 S. Ct. 298, 302, 89 L. Ed. 264, or in which there is no actual antagonistic assertion of rights."

Whenever in the course of litigation it becomes apparent that there is an absence of a genuine adversary issue between the parties, the court should withhold the exercise of jurisdiction and dismiss the action. United States v. Johnson, supra; Burton v. Durham Realty & Insurance Co., 188 N.C. 473, 125 S.E. 3. See also Town of Tryon v. Duke Power Co., 222 N.C. 200, 22 S.E.2d 450; Parker v. Raleigh Sav. Bank, 152 N.C. 253, 67 S.E. 492; City of Greensboro v. Wall, 247 N.C. 516, 101 S.E.2d 413; 1 C.J.S. Actions § 1 f (7), p. 944; 14 Am. Jur., Courts, Sec. 49; Ibid, Sec. 173.

This record impels the conclusion that the instant action, as one to test the constitutional validity of the Firemen's Pension Fund Act, lost its adversary character when the original defendants who demurred were let out.

In support of this conclusion it suffices to point to these crucial facts: The defendant Great American Insurance Company is one of the plaintiffs in an action instituted in the Superior Court of Wake County on 26 August, 1957, by five insurance companies for the purpose of testing the constitutionality of the Firemen's Pension Fund Act. The case is now before this Court on appeal, and is being decided by opinion filed simultaneously with this opinion. The companion case, entitled American Equitable Assurance Company of New York v. Gold, N.C., 103 S.E.2d 344, joins as defendants the same persons who as original parties defendant in the instant action were let out when their demurrer was sustained. The allegations of the complaint attacking the constitutionality of the Act are substantially the same in the companion case as in the instant case. Also, it is noted that in the case at bar, in answering the plaintiff's allegations of unconstitutionality, the defendant makes what it terms only "technical and formal denial thereof." And this "technical and formal" denial is prefaced by the averment that the defendant is of the opinion that the statute "is probably unconstitutional * * * and will be so declared by the courts for the reasons set forth in the complaint, * * *" Moreover, the defendant appellant in its answer alleges that it "is in the position of a stakeholder" and offers, if requested to do so, to pay the amount of the additional charge claimed by the plaintiff into court, to be paid out as directed by the court upon final determination of the cause. And in its prayer for relief, the defendant prays, not that the statute be upheld, but only that "the court take jurisdiction of this matter and determine the validity and constitutionality of the Firemen's Pension Fund Act."

It is further noted that the attorneys who appeared amici curiae in this Court also appeared in a similar capacity in the court below. The record indicates that these attorneys, who had previously represented the demurring defendants, were invited by both the plaintiff and the defendant to appear amici curiae, subject to the permission of the court, and participate in the hearing on the motion for judgment on the pleadings. In response to the invitation, and with the permission of the court, the attorneys appeared at the hearing, but, as was their right, they took the position that the court was without jurisdiction to pass on the constitutional questions, and limited their arguments to procedural and jurisdictional phases of the case. Similarly, in this Court the amici curiae brief and the amplifying oral argument were limited in scope to the same procedural and jurisdictional matters, and did not go to the merits of the constitutional questions attempted to be presented. These fringe amici curiae appearances have contributed nothing of substance toward giving the case a genuine antagonistic character.

We deem it proper to state that the record here discloses no suggestion of collusion on the part of any of the parties or attorneys. On the contrary, the case appears to have been instituted in the utmost good faith for the purpose of obtaining a speedy decision of a question vitally affecting both private and public rights. And the case as instituted against all the original parties presented a genuine justiciable question for the court. It was only when the case was dismissed as to the demurring defendants by order of Judge Bickett, with no appeal being noted by the plaintiff, that the case lost its adversary character. The record on appeal does not disclose whether the presiding Judge was apprised of the fact that the defendant Great American Insurance Company was a party plaintiff in the companion case heretofore mentioned. The record in that case discloses that it was previously heard by Judge Bickett on demurrer and had been on appeal to this Court more than a month before Judge Sharp heard the instant case. However, both cases were heard in this Court the same day, on call of cases from the Tenth District. Thus we are charged with judicial notice that the Great American Insurance Company, defendant in the instant case, is a plaintiff in the other case, and being charged with such notice, we take cognizance of all the natural and reasonable inferences deducible therefrom; and when these facts and inferences are considered with the facts disclosed by the record in the instant case, it is manifest that as between the plaintiff and the defendant there is no actual antagonistic interest and that both parties desire the same relief, namely, that the Act be declared unconstitutional.

Since no real controversy is presented by the case, the action will be dismissed. This will be done notwithstanding the plaintiff is suing for refund of the fifty cents additional premium collected by the defendant pursuant to the Firemen's Pension Fund Act. In this connection it is worthy of note that the companion case which is being decided simultaneously herewith is now set to provide the means necessary for a prompt testing of the validity of the Firemen's Pension Fund Act.

The judgment rendered below will be treated as erroneous and set aside; and the action will be dismissed. Let each side pay its own costs.

Action dismissed.

WINBORNE, C. J., took no part in the consideration or decision of this case.