Hayes ex rel. Hayes v. City of Wilmington

PARKER, J. G.S. 1-153 prohibits the allegations of “extraneous, evidential, irrelevant, impertinent, or scandalous matter in a complaint or answer.” Spain v. Brown, 236 N.C. 355, 72 S.E. 2d 918. In the case at bar the motions to strike were made in apt time, and are therefore made as a matter of right, and are not addressed to the discretion of the court. Baker v. Trailer Co., 242 N.C. 724, 89 S.E. 2d 388; Daniel v. Gardner, 240 N.C. 249, 81 S.E. 2d 660. “The denial of a motion to strike matter from a pleading under the provisions of G.S. 1-153 is not ground for reversal unless the record affirmatively reveals these two things: ‘(1) that the matter is irrelevant or redundant; and (2) that its retention in the pleading will cause harm or injustice to the moving party.’ ” Daniel v. Gardner, supra. It has long been held in North Carolina that in an action for damages for personal injury, evidence that the defendant’s liability for the act complained of has been insured by a third party is ordinarily incompetent. Flanner v. Saint Joseph Home, 227 N.C. 342, 42 S.E. 2d 225; Herndon v. Massey, 217 N.C. 610, 8 S.E. 2d 914; Scott v. Bryan, 210 N.C. 478, 187 S.E. 756; Lytton v. Mfg. Co., 157 N.C. 331, 72 S.E. 1055. [554] Therefore, it is ordinarily improper to plead it. Revis v. Asheville, 207 N.C. 237, 176 S.E. 738; Herndon v. Massey, supra. “That the defendant had the forethought to protect itself against such liability as the law imposes for such injuries, does not serve to enlarge or extend that liability.” Flanner v. Saint Joseph Home, supra. We have held in an action for damages for wrongful death that the liability insurer — where the contract is one of indemnity only — is not a proper party to the action. Clark v. Bonsal, 157 N.C. 270, 72 S.E. 954. In Luttrell v. Hardin, 193 N.C. 266, 136 S.E. 726, it is said: “It has been repeatedly held that the fact that a defendant in an actionable negligence action carried indemnity insurance could not be shown on the trial. Such evidence is incompetent.” The cases we have cited above refer to efforts of plaintiffs to bring in the insurance or indemnity company. But we think that the same principle is applicable here, and that the reading to the jury from the further answer and cross action of the city of Wilmington of the allegations that the contractor shall take out, and maintain all insurance as required under instructions to bidders; the allegations in respect to the contractor furnishing a faithful performance bond; the allegations that the contractor shall not commence work under the contract, until the contractor has taken out and maintained during the life of the contract public liability and property damage insurance for claims of property damage, personal injuries or death which may arise under the contract, whether such obligations be by the prime contractor, or a subcontractor, or any one employed by either of them; and the allegations of the cross action as to the faithful performance bond of the Towles-Cline Construction Co., and Seaboard Surety Co., will cause the same harm and injustice to the appellants, as if those allegations were in the complaint. The only parties to the faithful performance bond are Towles-Cline Construction Co., Seaboard Surety Co., and the city of Wilmington. The city of Wilmington in its brief has favored us with no citation of case or authority to support their contention that these allegations should be retained in its answer. The lower court erred in not striking out these allegations in respect to insurance and an indemnity bond. It is true that the Seaboard Surety Co. is not objecting, and has answered. But the appellants, who will be substantially prejudiced by these allegations, if they are permitted to remain in the pleading, do object, and they have objected in apt time, and in the proper manner by a motion to strike. Hayes v. Wilmington, 239 N.C. 238, 244, 79 S.E. 2d 792; 67 C.J.S., Parties, p. 1148. [555] The Towles-Cline Construction Co., in paragraph 6 of its amended answer, pleads its contract with the city of Wilmington to do this street paving and improvements, and alleges, “a duplicate of which contract is in the possession of this defendant, which contract will be produced at the trial of this cause, and speaks for itself.” A similar allegation appears in the amended answer of E. B. Towles Construction Co. The amended answer of S. E. Cooper, trading and doing business as S. E. Cooper Co., and John Lindsey Neal, alleges that “these defendants were not parties to this contract, and are not familiar with all its terms and conditions, but said contract is in writing, and will speak for itself as to its terms, provisions and conditions, when, and if, produced at the trial of this cause.” The city of Wilmington in its answer alleges: “That this defendant and the defendant Towles-Cline Construction Co. entered into a complete and independent contract on the 15th day of August 1951, providing for the construction of municipal improvements primarily consisting of street paving improvements under Paving Project No. PAV-C-153-51.” The appellants have not asked that this allegation be stricken out. The appellants have not asked that these allegations of the further defense of the city of Wilmington be stricken out: “ (d) The said General Conditions above referred to further provide that in the event of damages to persons or property of any kind legally existing along or adjacent to the work, the contractor agrees to make the repairs or payments for damages or injuries as may be necessary, and that the contractor shall take all risks and be responsible for all expenses and damages attending the presence or proximity of gas or water pipes, or public or private sewers, or drains and conduits. Said General Conditions are hereby pleaded, which form a part of the said contract, and will be produced upon trial of this cause.” “ (f) This defendant says and alleges that it has not done any act or thing contributing to or in anywise, or in any manner, causing injuries, damages, losses or death referred to in the complaint, and that all of the work done, and being done on December 31, 1951, was being done under the independent contract herein referred to and pleaded, under the direction and supervision of the contractor or a subcontractor employed by the prime contractor, and the said work was not being done under the direction and supervision of this answering defendant. “ (g) This answering defendant says and alleges that by reason of the matters and things herebefore alleged, and particularly by [556] reason of the prime and independent contract herein referred to and pleaded, with the several documents forming a part thereof, that this defendant is in nowise indebted to the plaintiff for any sum whatsoever, and that if the-plaintiff recovers any amount or judgment against this answering defendant, that this defendant is entitled to judgment over against said contractor and any subcontractor doing or performing any work under said project or . contract for or by the consent and employment of the prime contractor, and that this defendant is only secondarily liable and that all of the other defendants are primarily liable to this defendant to pay and satisfy any judgment, if there is a recovery therein in favor of the plaintiff, and this defendant hereby pleads against the other defendants primary liability, and this defendant pleads its primary right of recovery against the other defendants.” After a study of the record and the briefs of the parties, we have come to the conclusion that the allegations in the answer of the city of Wilmington, that these appellants ask to be stricken out, are irrelevant, and that their remaining therein will be prejudicial to the rights of these appellants in the trial of the case. The lower court should have allowed the motion to strike the challenged allegations from the answer of the city of Wilmington; and its failing to do so is reversible error. The Carolina Power & Light Company, in its own right and as successor by merger of the Tide Water Power Company, entered a special appearance, and moved to strike the names of the Carolina Power & Light Company and the Tide Water Power Company as parties defendant. The motion was granted, and these appellants appealed. The identical question was decided by this Court in “W. J. Hayes, administrator of the estate of W. J. Hayes, Jr., v. City of Wilmington et al.”— the same defendants here — which case is reported ante, 525, 91 S.E. 2d 673. Upon authority of that case the ruling of the lower court in striking out the names of the Carolina Power & Light Company and of the Tide Water Power Company as parties defendant is reversed. The orders of the lower court on the two motions to strike are Reversed. BaRnhill, C. J., took no part in the consideration or decision of this case.