DocketNumber： 235
Judges： Mooee, Bobbitt, Parkee, Rodmán
Filed Date： 5/24/1961
Status： Precedential
Modified Date： 11/11/2024
Five questions are here presented for determination.
(1) Did the court below err in striking from the amended answer of defendant Laboratory Exhibit A (the contract between Suggs and Laboratory) and the references thereto contained in paragraphs 2, 3, 4 and 5(d) of the Seventh Further Answer and Defense?
The provisions of the contract requiring Suggs to carry liability insurance for the protection of Laboratory are not relevant or material to plaintiff’s cause of action or to any defense available to Laboratory. Any reading of these provisions or reference thereto in the presence of the jury would, over objection, constitute prejudicial error. The fact that defendants in a negligence action are protected by liability insurance can throw no light on the question of negligence or other circumstances of the accident and is inadmissible in evidence. Stans-bury: North Carolina Evidence, s. 88, p. 163. Nothing should remain in a pleading, over objection, which is incompetent to be introduced in evidence. Daniel v. Gardner, 240 N.C. 249, 251, 81 S.E. 2d 660. A policy of liability insurance is for the protection and indemnity of those insured by it, and in an action by an injured party against insured all references to such insurance is prejudicial, and all such references should be stricken from the pleadings. Jordan v. Maynard, 231 N.C. 101, 103, 56 S.E. 2d 26.
The contract, Exhibit A, not only requires Suggs to carry liability insurance for Laboratory’s protection but specifies minimum limits. If the insurance is injected into the case, it can conceivably prejudice both plaintiff and Suggs. A party to an action is entitled to have stricken irrelevant matters which are prejudicial to him. Council v.
Furthermore, Suggs’ agreement to hold Laboratory “harmless from any and all loss or liability of any nature in connection with the demolition of said buildings and any of its activities in connection therewith” is a matter which concerns Suggs and Laboratory only. Plaintiff is not privy thereto. Therefore, it is not germane to plaintiff’s cause of action, and the determination of the rights and liabilities of defendants with respect to this agreement of indemnity is not necessary to a conclusion of plaintiff’s cause of action. Only matters relevant to the original or primary action in which all parties have a community of interest may be litigated. Wrenn v. Graham, 236 N.C. 719, 721, 74 S.E. 2d 232; Montgomery v. Blades, 217 N.C. 654, 656, 9 S.E. 2d 397.
In Clark v. Freight Carriers, 247 N.C. 705, 102 S.E. 2d 252, an original defendant set up a cross-action against an additional defendant and alleged an implied contract to indemnify original defendant with respect to injuries to original defendant’s employees. The trial court allowed the motion of additional defendant to strike the cross-action. This Court affirmed the ruling and said: . . it was discretionary with the trial judge as to whether or not . . . (original defendant) would be permitted to litigate its claim under the implied contract of indemnity against (additional defendant) in this action.”
In Gaither Corp. v. Skinner, 238 N.C. 254, 77 S.E. 2d 659, the owner of a building sued his contractor for breach of contract because of defects in a roof. Contractor sought to join his subcontractor (who had installed the roof) as an additional party defendant, on the ground that the subcontractor had failed to do the work according to specifications and was therefore liable to the owner and contractor. Contractor asked for recovery over against subcontractor. The trial court refused to make the subcontractor an additional party defendant. This Court sustained the ruling of the trial court and declared: “The plaintiff has elected to pursue his action against the contractor with whom he contracted in order to recover damages for an alleged breach of that contract, and plaintiff should be permitted to do so without having contested litigation between the contractor and his subcontractor projected into the plaintiff’s lawsuit.” Accord: Board of Education v. Deitrick, 221 N. C. 38, 18 S.E. 2d 704.
In Eledge v. Light Co., 230 N.C. 584, 55 S.E. 2d 179, the original defendant set up a cross-action based on an indemnity contract against additional defendants. This Court affirmed the ruling of the trial court in striking the cross-action.
Laboratory contends that it has the right to set out the contract in full inasmuch as the contract is referred to in the complaint. The reference in the complaint is only for the purpose of explaining the presence of Suggs on the premises. Portions of a contract may be relevant and competent, and portions immaterial and incompetent, in a suit not based on the contract. A pleading should contain allegations of ultimate relevant facts, not evidential facts. G.S. 1-222. Even in a suit on a contract, the contract need not be set out in full in the pleadings. Wilmington v. Schutt, 228 N.C. 285, 45 S.E. 2d 364.
In the instant case relevant parts of the contract may be pleaded and offered in evidence, but not irrelevant and prejudicial provisions. The portions of the contract which tend to explain Suggs’ presence and activities on the premises of Laboratory on Templeton Avenue are competent and material, also the portion tending to show Laboratory’s ownership of and relation to the premises and property. For this reason the allegations of paragraphs 3 and 4 of the Seventh Further Answer and Defense are permissible and should not have been stricken. We express no opinion as to whether or not the facts alleged in these paragraphs conform to pertinent terms of the contract.
Paragraph 5(d) of the Seventh Further Answer and Defense contains a mere conclusion of the pleader, that Suggs “negligently failed to comply with the terms and provisions of the written contract.” The Seventh Further Answer and Defense fails to state any facts upon which the conclusion is based. Furthermore, an omission to perform a contractual obligation is never a tort unless such omission is also the omission of a legal duty. Council v. Dickerson’s, Inc., supra; Insurance Association v. Parker, 234 N.C. 20, 23, 65 S.E. 2d 341.
(2) Did the court err in sustaining defendant Suggs’ demurrer ore tenus to defendant Laboratory’s plea (paragraph 8 of the Seventh Further Answer and Defense) that Suggs had the “last clear chance” to avoid the accident and injury to plaintiff?
The doctrine of last clear chance cannof be invoked as between defendants concurrently negligent. 38 Am. Jur., Negligence, s. 227, p. 912. The doctrine arises only when plaintiff is guilty of contributory negligence, and one defendant may not resist recovery by plaintiff on the ground that a co-defendant had the last clear chance to avoid the accident. Taylor v. Rierson, 210 N.C. 185, 189, 185 S.E. 627. The doctrine has application only as between plaintiff and a defendant. The doctrine as applied in this jurisdiction is defined and explained in
Under the facts as alleged in the instant case the last clear chance doctrine is not available, even to plaintiff. It is certainly not a proper pleading for defendant Laboratory since it has not set up a counterclaim. “Viewed as a phase of the principle of proximate cause, the doctrine of last clear chance negatives an essential element of contributory negligence by rendering plaintiff’s negligence a mere condition or remote cause of the accident.” 38 Am. Jur., Negligence, s. 216, p. 903.
Laboratory contends that the allegation of “last clear chance” is an affirmative defense and Suggs is in no position to question it. As already stated, it does not arise in this case. But, as Laboratory erroneously seeks to apply it, the plea proposes to place responsibility on Suggs and to relieve Laboratory. It is true that “a mere defense made by one co-defendant is not subject to demurrer by the other defendant . . . .” Bargeon v. Transportation Co., 196 N.C. 776, 777, 147 S.E. 299. But an irrelevant allegation by one defendant may be stricken by a co-defendant when prejudicial to the latter. Council v. Dickerson’s, Inc., supra.
The court properly sustained the demurrer ore tenus.
(3) Did the court err in striking paragraph 9 of the Seventh Further Answer and Defense in which defendant Laboratory alleges that its negligence, if any, imposes only secondary liability and that defendant Suggs is primarily liable?
Where one joint tort-feasor is only passively negligent, but is exposed to liability through the positive acts and actual negligence of the other, the parties are not in equal fault as to each other, though both are equally liable to the injured party. Where one does the act which produces the injury, and the other does not join in the act, but is thereby exposed to liability and required to pay damages, the latter may recover against the principal delinquent, and the court will inquire into the real delinquency and place the ultimate liability upon him whose fault was the primary cause of the injury. Johnson v. Asheville, 196 N. C. 550, 553, 146 S.E. 229. See also Kimsey v. Reaves, 242 N.C. 721, 89 S.E. 2d 386; Bost v. Metcalfe, 219 N.C. 607, 14 S.E. 2d 648. The inquiry as to primary and secondary liability, when properly pleaded and supported by evidence, is germane to plaintiff’s cause of action. Clothing Store v. Ellis Stone & Co., supra. The entry of judgment fixing primary and secondary liability as between joint tort-feasors is sanctioned by statute G.S. 1-222. Bell v. Lacey, 248 N.C. 703, 705, 104 S.E. 2d 833; Bowman v. Greensboro, 190 N.C. 611, 130 S.E. 502.
“The doctrine of primary-secondary liability is based upon a contract implied by law. Hunsucker v. Chair Co., 237 N.C. 559, 75 S.E. 2d 768. There can be no implied contract where there is an express contract between the parties in reference to the same subject matter. (Citing cases).” Crowell v. Air Lines, 240 N.C. 20, 34, 81 S.E. 2d 178. The doctrine of primary-secondary liability “is based upon a contract implied in law from the fact that a passively negligent tort-feasor has discharged an obligation for which the actively negligent tort-feasor was primarily liable.” ibid. If there is an express contract of indemnity, the indemnitee is relegated to his contract, a matter not germane to plaintiff’s tort action.
In the instant case there is an express contract between Suggs and Laboratory whereby Suggs undertakes to protect Laboratory from any negligence of Suggs involved in the demolition of the building. Therefore the doctrine of primary-secondary liability does not arise. Furthermore, plaintiff alleges that both defendants were actively negligent. There can be no indemnity among joint tort-feasors when both are actively negligent. Newsome v. Surratt, 237 N.C. 297, 300, 74 S.E. 2d 732. It is also true that the doctrine of primary-secondary liability does not arise where one defendant alleges sole responsibility of his co-defendant. Ballinger v. Thomas, 195 N.C. 517, 522, 142 S.E. 761.
The court did not err in striking paragraph 9 of the Seventh Further Answer and Defense.
(4) In an action against two defendants, as joint tort-feasors, may one defendant set up a plea for contribution against the co-defendant and thereby preclude dismissal of the co-defendant during the trial and before judgment (paragraph 10 of Seventh Further Answer and Defense) ?
The answer is “No.” The question was definitely and clearly decided in Bell v. Lacey, supra, in which many decisions of this Court are collected and reviewed. This Court there declared:
“At common law, no right of contribution existed between or among joint tort-feasors who were in pari delicto. The right is purely statutory with us and its use necessarily depends upon the terms and provisions of the statute. . . .
“When negligence is joint and several, the injured party may elect to sue either of the joint tort-feasors separately, or any or all of them together. . . .
“When a plaintiff elects to sue one or more joint tort-feasors, but
“This Court has uniformly held that where all the j oint tort-feasors are brought in by a plaintiff and a cause of action is stated against all of them, such defendants under our statutes, G.S. 1-137 and G.S. 1-138, are permitted to set up in their respective answers as many defenses and counterclaims as they may have arising out of the causes of action set out in the complaint. However, they are not allowed to set up and maintain cross-actions as between themselves which involve affirmative relief not germane to the plaintiff’s action. . . . This is so, notwithstanding the fact that the defendants’ claim for damages may have arisen out of the same set of circumstances upon which the plaintiff’s action is bottomed.
“On the other hand, where the plaintiff does not bring his action against all the joint tort-feasors, and an original defendant sets up a cross-action against a third party and has him brought in as an additional defendant, under the provisions of G.S. 1-240, for contribution, such original defendant makes himself a plaintiff as to the additional party defendant. . . .
“Ordinarily, such additional party defendant has no cause of action stated against him except that asserted in the cross-action and set out in the cross-complaint. Hence, the additional party defendant is under no obligation to answer any allegations in the original complaint, but only those alleged against him in the cross-complaint. . . .”
However, when the plaintiff, as in the instant case, proceeds against two or more parties, as joint tort-feasors, each is entitled to contribution from the other or others if there is a judgment of joint and several liability against them. G.S. 1-240. But during the course of the trial each is a defendant as to plaintiff only, and neither of them may preclude the dismissal of the other or others if plaintiff fails to make out a prima facie case as to them. See Loving v. Whitton, 241 N.C. 273, 276, 84 S.E. 2d 919.
That portion of the prayer for relief asking for contribution was properly stricken together with paragraph 10 of the Seventh Further Answer and Defense.
Defendant Laboratory contends that Judge Hooks had no authority to vacate the order of Judge Craven with respect to the paragraphs in question.
No appeal lies from one superior court judge to another. Wall v. England, 243 N.C. 36, 39, 89 S.E. 2d 785. A judge has no power to review a judgment rendered at a former term upon the ground that such judgment is erroneous. Cameron v. McDonald, 216 N. C. 712, 715, 6 S.E. 2d 497; Dail v. Hawkins, 211 N.C. 283, 284, 189 S.E. 774; Wellons v. Lassiter, 200 N.C. 474, 478, 157 S.E. 434. A judge of superior court is without authority to review and vacate orders or judgments, not merely interlocutory, entered in the cause by another judge of superior court. Cuthbertson v. Burton, 251 N.C. 457, 459, 111 S.E. 2d 604.
An order or judgment is merely interlocutory if it does not determine the issues but directs some further proceeding preliminary to final decree. Such an order or judgment is subject to change by the court during the pendency of the action to meet the exigencies of the case. But an order or judgment which affects some substantial right claimed by a party may not be modified or vacated by another judge on the ground that it is erroneous. Relief from an erroneous judgment is by appeal to the Supreme Court. Russ v. Woodard, 232 N.C. 36, 59 S.E. 2d 351.
In Wall v. England, supra, an order striking certain allegations from an answer was entered at term by the presiding judge, with leave to file amended answer or other pleading. No exception was taken. Defendant filed an amendment to his answer. Plaintiff again moved to strike. The court found that the amendment contained the identical matter stricken in the first instance and allowed the motion to strike. Defendant appealed. In holding that defendant was bound by the ruling in the first instance, this Court said: “If the ruling of the Judge of Superior Court were erroneous, the remedy of defendant was to
The ruling of Judge Hooks was legally correct, but erroneous nevertheless. He was without authority to overrule another superior court judge. Even so, the paragraphs in question are inapplicable and should have been stricken in the first instance. The Supreme Court has supervisory jurisdiction over the lower courts and will exercise this jurisdiction in order that the case may be tried on the correct theory below and unnecessary delay in the administration of justice be thereby prevented. Constitution of North Carolina, Article IV, section 8. Terrace, Inc., v. Indemnity Co., 243 N.C. 595, 91 S.E. 2d 584. The order of Judge Hooks with respect to these paragraphs will not be disturbed.
The order of Judge Hooks as to paragraphs 3 and 4 of the Seventh Further Answer and Defense is reversed. In all other respects it is affirmed.
Modified and affirmed.