Rivenbark v. Shell Union Oil Corp.

Clarkson, J. This is an action for actionable negligence brought by plaintiff against defendants for alleged injury to him by defendants, in keeping and maintaining at a gasoline or filling station, operated by defendants in Wilmington, N. C., a slick and dangerous place for customers to walk on, by allowing gasoline, oils and greases to drip and spill on the floor and approach to the filling station. Plaintiff alleged that he was seriously injured, without fault on his part, by defendants’ negligence in not using due care to keep a safe place to walk on. The defendants Farrow in their answer say that they are the lessees of the filling station and run the business independently of the other defendants. The other defendant, Shell Union Oil Corporation, says that the Shell Eastern Petroleum Products, Inc., has ceased to exist. That the Farrows were operating the filling station under their exclusive control, supervision and management. Defendants set up the plea of contributory negligence. It is well settled in this jurisdiction that in an action by an employee against an employer who is assured, the employee must actually sustain a loss before an action will lie upon the indemnifying policy taken out by the employer, as this is ordinarily expressly required by the terms of the policy. Duke v. Children’s Commission, Inc., 214 N. C., 570 (571). *598 In the present action plaintiff, wbo was injured, is a stranger and customer of the filling station, and in no way connected with defendants. He contends that the Farrow defendants are now and have long been employees of the corporate defendants and operated the gasoline or filling station for the corporate defendants. That they handled and distributed Shell gasoline and oils and that “Shell signs” are displayed there. The question presented: Did the court err in requiring the corporate defendant Shell Union Oil Corporation to produce the policy of liability insurance together with letters and telegrams between said corporate defendant and its liability carrier, calling on the carrier to defend this case, as set forth in the order appealed from, upon the notice and affidavit of record? We think not. N. C. Code, 1939 (Michie), sec. 900, is as follows: “A party to an action may be examined as a witness at the instance of any adverse party, and for that purpose may be compelled, in the same manner and subject to the same rules of examination as any other witness, to testify, either at the trial or conditionally or upon commission. Where a corporation is a party to the action, this examination may be made of any of its officers or agents.” Section 1823: “The court before which an action is pending, or a judge thereof, may, in their discretion, and upon due notice, order either party to give to the other, within a specific time, an inspection and copy, or permission to take a copy, of any books, papers, and documents in his possession or under his control, containing evidence relating to the merits of the action or of the defense therein. If compliance with the order be refused, the court, on motion, may exclude the paper from being given in evidence, or punish the party refusing, or both.” Section 1824: “The courts have full power, on motion and due notice thereof given, to require the parties to produce books or writings in their possession or control which contain evidence pertinent to the issue, and if a plaintiff shall fail to comply with such order, and shall not satisfactorily account for his failure, the court, on motion, may give the like judgment for the defendant, as in cases of nonsuit; and if a defendant shall fail to comply with such order, and shall not satisfactorily account for his failure, the court, on motion as aforesaid, may give judgment against him by default.” While a “roving commission for the inspection of papers” will not be ordinarily allowed, an application for an order for inspection of writings is sufficiently definite when it refers to papers under the exclusive control of the adverse party, which relate to the immediate issue in controversy, which could not be definitely described, and an order based thereon will *599 be upheld. Bell v. Bank, 196 N. C., 233; Dunlap v. Guaranty Co., 202 N. C., 651. The notice in this case is bottomed on the fact that a production of the policy of liability insurance in force at the time of the injury, and in possession of the Shell Union Oil Corporation, and the letters and telegrams from the defendant Shell Union Oil Corporation, to the liability carrier calling on it to defend this case, are germane to the issues involved in the action. If the Shell Union Oil Corporation is carrying liability insurance, this is some evidence for the jury to consider that the Shell Union Oil Corporation is interested in the control, supervision and management of the filling station and the Farrows are its agents or partners. The true facts should be known. In Davis v. Shipbuilding Co., 180 N. C., 14 (76-77), with his usual clarity, Hoke, J., said: “It was chiefly urged for error that the court admitted, over defendant’s objection, evidence tending to show that the shipbuilding company had taken out and held indemnity insurance in reference to employees engaged in this work, citing Clark v. Bonsal, 157 N. C., 270, in support of the objection. It is true that in Ciarle v. Bonsai, supra, the Court decided that an injured employee could not maintain an action for negligent injury against the insurance company on an indemnity policy as ordinarily drawn, taken out, and held by the employer for his own protection. Applying the principle, it has been held in several such cases that the existence and contents of such policy is not, ordinarily relevant on the question of damages, or on the issue as to negligence, but, in the present ease, the defendant was endeavoring to maintain the position that it was not then operating the plant, and the intestate, at the time of the occurrence, was not in their employment. And the fact that the company had taken out and then held indemnity insurance for injuries to their employees was clearly relevant in that issue. The court was careful to restrict the evidence to the purpose indicated, and the exception must be overruled. In this connection it was earnestly insisted that there was error in permitting witnesses to speak of the policies in question when it appeared that they were in writing and not produced. The question chiefly pertinent here was not so much the contents of the policies as the independent fact that such policies were held, but, in any event, the policies not being the subject-matter in dispute between the parties nor their contents directly involved in the issue, they do not come within the rule which excludes parol evidence as to the contents of a written paper or document. Miles v. Walker, 179 N. C., 479-484; Morrison v. Hartley, 178 N. C., 618.” Keller v. Furniture Co., 199 N. C., 413 (416). In Perkins v. Rice, 187 Miss., 28, 72 N. E. Reporter, at p. 323, it is held: “Where, in an action for injuries to plaintiff while seeking to use *600 an elevator in an apartment building, defendants admitted ownership of the building, but denied that they were in control of the elevator at the time of the accident, evidence that, shortly before the accident, defendants had procured an indemnity insurance policy against loss or damage from accidents arising in operating the elevator, and that such insurance was in force when plaintiff was injured, was admissible to prove that, in renting the apartment, defendants still retained control of the elevator.” In Biggins v. Wagner (S. D.), 245 N. W., 385, 85 A. L. R., 776, it is held: “The fact that a defendant in an-automobile accident case carried liability insurance may, notwithstanding the incidental prejudice, be shown for its bearing on the issue whether the driver of the automobile was an employee of such defendant or an independent contractor.” At p. 784, the annotation is as follows: “If an issue in the ease is as to whether the plaintiff was a servant of the defendant or whether he was an independent contractor or servant of an independent contractor, evidence is admissible that the defendant carried indemnity insurance on his employees, including the plaintiff, such evidence having been treated in some cases as having a tendency to negative the independence of the contract, or, in other words, as having a tendency to show that the plaintiff was considered by the defendant as his employee.” Twelve states follow this rule, including North Carolina, citing the ease of Davis v. Shipbuilding Co., supra. We think the affidavit of plaintiff is sufficient and the facts alleged show that the examination was necessary and material, as it sets forth with particularity the papers or documents essential as evidence to plaintiff’s action. Bell v. Bank, supra. The judgment of the court below is Affirmed.