Bongardt v. Frink

143 S.E.2d 286 (1965) 265 N.C. 130

Henry F. BONGARDT, Jr.
v.
Leon FRINK.

No. 701.

Supreme Court of North Carolina.

July 23, 1965.

James, James & Crossley by Joshua S. James, Wilmington, for defendant appellant.

Herring, Walton, Parker & Powell, Southport, for plaintiff appellee.

PARKER, Justice.

Defendant has four assignments of error. (1) He assigns as error the order entered by Judge Braswell allowing in his discretion plaintiff's motion to withdraw his reply in its entirety, and ordering it withdrawn as a pleading in the case. (2) He assigns as error Judge Braswell's order denying him a judgment upon the pleadings and refusing to dismiss plaintiff's action. (3) He assigns as error the denial of his motion for judgment of compulsory nonsuit made at the close of all the evidence. (4) He assigns as error the denial by the court of his motion to dismiss the action non obstante veredicto, and the denial of his motion to set aside the verdict as contrary to the greater weight of the evidence, and the signing of the judgment.

This Court said in McFetters v. McFetters, 219 N.C. 731, 14 S.E.2d 833: "A pleading, when filed, passes beyond the control of the pleader and becomes a part of the record in the case. Thereafter the subject of its withdrawal, as a general rule, is a question addressed to the reasonable discretion of the court. 31 R.C.L., 593."

In 41 Am.Jur., Pleading, § 318, it is said: "Withdrawal of pleadings is a subject closely akin in many respects to that of amendments, for it is concerned with alterations in the record and their effect on the rights of the adverse party, and, as a general rule, is a question addressed to the reasonable discretion of the court. In the exercise of such discretion, courts may allow * * * the withdrawal of particular pleas or of entire pleadings as the exigencies of the case warrant."

In 71 C.J.S., Pleading § 419, p. 852, it is said: "While leave to withdraw a pleading will usually be given, where the other party will not be prejudiced, the matter is largely within the discretion of the court, and the application should be made with due diligence, in good faith, and should present good reasons for granting it." In ibid, p. 855, it is said: "The status of the pleadings on withdrawal of a particular pleading is the same as though it had never been filed * * *. While leave to withdraw a pleading does not authorize the party actually to take it off the files, such withdrawal removes it from consideration. A defense is abandoned by withdrawal of a plea setting it up * * *."

Defendant states in his brief: "The reply did not allege nor is it contended by anyone that the money consideration paid for the release executed by the defendant was paid personally by the plaintiff. On the contrary, as everyone knows, the money was paid by the plaintiff's liability insurance carrier on his behalf." There is no evidence in the record that plaintiff consented to the settlement. When defendant on 12 February 1964, over twelve months after the institution of this action, filed with the court a written motion and petition to file a counterclaim for personal injuries and damage to his automobile resulting from the collision between his automobile and plaintiff's automobile on 14 April 1962, he, and his counsel of record, then and now, knew that defendant, according to his statement, had signed the release and settlement by reason of a gross fraud perpetrated on him by a representative of plaintiff's automobile liability insurance carrier. Defendant and his counsel well-knowing these facts decided, for reasons best known to themselves, not to plead the previous settlement as a bar to plaintiff's action, but to repudiate the previous settlement on the ground of fraud, and to allege a counterclaim against plaintiff for his (defendant's) damage. When defendant's motion was allowed by the court, he filed a counterclaim on 3 March 1964.

On 16 March 1964 plaintiff filed a verified reply to defendant's counterclaim, in which he alleged the previous settlement as a plea in bar to defendant's counterclaim. This reply was signed by a prominent law firm in Wilmington, N. C., and plaintiff's present counsel of record. This prominent law firm in Wilmington signed no other pleading in the case, so far as the record before us shows, and it is a fair inference that it represented plaintiff's automobile liability insurance carrier. It seems a fair inference that under the particular facts here plaintiff by signing the verified reply did not intend to ratify the settlement. It is also a fair inference that plaintiff's counsel of record later realized that plaintiff by pleading the general release and previous settlement, ratified his insurance carrier's settlement with defendant and barred his right of action against defendant. Bradford v. Kelly, 260 N.C. 382, 132 S.E.2d 886; Keith v. Glenn, 262 N.C. 284, 136 S.E.2d 665. At the June 1964 Session of Brunswick, plaintiff made a motion before the presiding judge for permission to withdraw his reply in its entirety. The presiding judge allowed the motion. Under the particular facts here, the granting of the motion did not prejudice defendant for these reasons: (1) He knew of the release at least on 12 February 1964, and declined to allege it as a plea in bar, but decided to repudiate it on the ground of fraud and to set up a counterclaim for his own damage. (2) After the motion was allowed, he could have, but did not, request the court for permission to amend his pleadings by alleging the previous settlement and general release as a bar to plaintiff's action, but decided to ignore it and to go to trial on his counterclaim. Under the particular facts here, plaintiff's motion to withdraw his reply in its entirety was made with due diligence, in good faith, and presented good reasons for granting it. Defendant states in his brief that plaintiff's motion to withdraw his reply was made at the "next ensuing civil term convening in Brunswick County following the time when plaintiff filed his reply." Plaintiff's motion for permission to withdraw his reply in its entirety was addressed to Judge Braswell's sound discretion, and under the particular facts here, no abuse of his discretion appears in granting the motion. His ruling will not be disturbed. Defendant's first assignment of error is overruled.

Keith v. Glenn, supra, presents a different factual situation. In that case plaintiff replied to the counterclaim. In his reply he denied any negligence on his part, and alleged as a further defense to the counterclaim his insurance carrier, against his wishes, paid defendant $1,250 in full settlement of defendant's claim against plaintiff. Notwithstanding his allegations that settlement was made contrary to his wishes, he specifically alleges it bars defendant's right to claim damages from plaintiff. Later plaintiff sought permission to withdraw the reply he had filed. Judge Hall in his discretion declined to permit plaintiff to withdraw his reply.

After Judge Braswell entered an order in his discretion allowing plaintiff to withdraw his reply in its entirety, he correctly denied defendant's motion for a judgment on the pleadings. Defendant's second assignment of error is overruled.

In respect to defendant's third assignment of error, the denial of his motion for judgment of compulsory nonsuit made at the close of all the evidence, it is horn-book law that in considering a motion for judgment of compulsory nonsuit, plaintiff is entitled to have his evidence considered in the light most favorable to him, and he is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom. Bridges v. Graham, 246 N.C. 371, 98 S.E.2d 492. Considering plaintiff's evidence in such a light, he has allegation and proof that would permit a jury to find that defendant was guilty of operating his automobile on a public highway in a reckless and careless fashion, in violation of G.S. § 20-140(b), in operating his automobile on a public highway without lights, and in operating it on a public highway without keeping a proper lookout, and that such negligence was the proximate cause of plaintiff's personal injuries and damage to his automobile, and that plaintiff was not guilty of any negligence proximately contributing to his injuries and property damage.

Defendant contends that if plaintiff's evidence is sufficient to carry the case to the jury, plaintiff in his testimony at the trial on cross-examination admitted he signed his reply, read the release in the plea in bar therein contained, and said what he read was true, and this was a second ratification of the release, and this entitles him to a judgment of nonsuit dismissing plaintiff's action. That a ratification once made may not be revoked.

Judge Braswell entered an order in his discretion permitting plaintiff to withdraw his reply at the June 1964 Session. The case was tried on its merits at the December 1964 Session on the complaint, answer, and defendant's counterclaim. There was no plea in bar of the prior settlement to defeat plaintiff's or defendant's claim, when the case was tried on the merits. Such a plea in bar is an affirmative defense which must be pleaded. Bradford v. Kelly, supra. "A trial is the examination of the issues joined between the parties, and these issues arise upon the pleadings in the case." McIntosh, N. C. Practice and Procedure, 2d ed., Vol. 1, § 1351. Even if the question of a previous settlement arose upon the pleadings in the instant case, which it did not, when the instant case was tried on the merits, plaintiff's testimony on cross-examination in respect to his reply, which had been withdrawn by order of Judge Braswell entered in his discretion, when considered in the light most favorable to him, does not compel the inescapable conclusion under the particular facts here that he either consented to or ever subsequently ratified his automobile liability insurance carrier's settlement with defendant. It is well-settled law in this State that a compromise and settlement of a claim against its insured will not bar the right of its insured from suing the releasor for his damages where he has neither consented to nor subsequently ratified such settlement. Keith v. Glenn, supra; Bradford v. Kelly, supra; Phillips v. Alston, 257 N.C. 255, 125 S.E.2d 580; Lampley v. Bell, 250 N.C. 713, 110 S.E.2d 316.

The court correctly denied defendant's motion for a judgment of compulsory nonsuit made at the close of all the evidence. Defendant's third assignment of error is overruled.

Defendant's last and fourth assignment of error is formal, and is overruled.

The judgment below is

Affirmed.