Penny v. . Stone

BaRNI-iill, J. An allegation in a pleading is irrelevant and immaterial whenever it is of such nature that evidence in support thereof would be incompetent at the hearing. Nothing ought to remain in a pleading, over objection, which is incompetent to be shown in evidence. Pemberton v. Greensboro, 203 N. C., 514, 166 S. E., 396; Duke v. Children’s Com., 214 N. C., 570, 199 S. E., 918. On a motion to strike, the test of relevancy of a pleading is the right of the pleader to present the facts to which the allegation relates in evidence upon the trial. Trust Co. v. Dunlop, 214 N. C., 196, 198 S. E., 645. Tested by this rule, the allegations contained in defendant’s third further defense, to which plaintiff objects, are irrelevant. The court below correctly ruled that they should be stricken. Hence defendant’s exceptive assignment of error based on said ruling cannot be sustained. The plaintiff is an officer of the court and he prosecuted this action under express authority conferred by G. S. 97-10. That statute prescribes the manner in which any amount recovered herein is to be disbursed. He is bound by the terms thereof and no agreement made by the father of deceased on the one hand and the employer or its insurance carrier on the other can affect him in the discharge of his duty as administrator. Furthermore, evidence concerning the amount of compensation paid by the employer or the amount of compensation to which dependents are entitled is expressly prohibited in an action such as this. G. S. 97-10. No agreement by the insurance carrier of the employer of plaintiff’s intestate not to sue is alleged. Defendant merely asserts that counsel for the insurance carrier gave assurance that they would recommend to their client that no suit in the nature of the one here maintained should be instituted and stated to defendant that “we have represented this company for years and we feel sure that they will follow our recommendations.” There is no suggestion that counsel did not in good faith carry out their promise. Furthermore, the alleged conversation, in and of itself, discloses that the insurance carrier had not been consulted and had not authorized the statement counsel are alleged to have made. Evidence in respect thereto would be irrelevant and incompetent on the trial of the issues raised by the pleadings herein. Defendant does not discuss in his brief his exception to the judgment as it relates to the action of the court in refusing to strike paragraph 5 of his third further defense wherein he pleads the acceptance by the dependents of the award made by the Industrial Commission and the releases executed in connection therewith as a bar to this action. Therefore, this *298 contention, is deemed to be abandoned. Rule 28, Rules of Practice in tbe Supreme Court, 221 N. C., 562, anno. p. 563. In any event.it is without merit. For the reasons stated the judgment below is Affirmed.