Cowart v. Honeycutt, 250

• Citation: 125 S.E.2d 382,257 N.C. 136
• Decision Date: 09 May 1962
• Docket Number: No. 250,250
• Court: United States State Supreme Court of North Carolina
• Parties: Bonnie Green COWART v. Douglas M. HONEYCUTT.

Page 382

125 S.E.2d 382

257 N.C. 136

Bonnie Green COWART v. Douglas M. HONEYCUTT.

No. 250

Supreme Court of North Carolina.

May 9, 1962

Kennedy, Covington, Lobdell & Hickman, by R. C. Carmichael, Jr., Charlotte, for defendant appellant.

Hedrick, McKnight & Parham, by Philip R. Hedrick, Charlotte, for plaintiff appellee.

PARKER, Justice.

Defendant's plea of a release is a plea in bar going to plaintiff's entire cause of action, and if established by proof, would defeat and destroy her action altogether. McAuley v. Sloan, 173 N.C. 80, 91 S.E. 701; Murchison Nat. Bank v. Evans, 191 N.C. 535, 132 S.E. 563; Ward v. Heath, 222 N.C. 470, 24 S.E.2d 5; Watkins. v. Grier, 224 N.C. 339, 30 S.E.2D 223; Gillikin v. Gillikin, 248 N.C. 710, 104 S.E.2d 861.

Judge Hobgood in the exercise of his discretion had the power under the circumstances here to enter an order that the plea in bar going to plaintiff's right to maintain her cause of action should be tried prior to trial on the merits of plaintiff's alleged cause of action. Gillikin v. Gillikin, supra; DeLoache v. DeLoache, 189 N.C. 394, 127 S.E. 419; McAuley v. Sloan, supra.

After the jury was impanelled and sworn the parties entered into these stipulations: One. On 22 February 1957 plaintiff had a claim against defendant arising out of a collision on 28 December 1956 between an automobile operated by defendant and an automobile operated by her husband, John W. Cowart, in which she was riding as a passenger. Two. On 22 February 1957 plaintiff and her husband executed the release pleaded by defendant as a bar to plaintiff's action.

The jury found by its verdict that the release was procured by fraud, as alleged in plaintiff's reply.

Defendant has one assignment of error: The trial court erred in denying his motion for judgment of nonsuit made at the close of all the evidence. Defendant in his brief states the question to be decided is this: 'Should a nonsuit have been granted on the ground that there was not sufficient evidence of actionable fraud to take the case to the jury?'

The Court said in Yerys v. New York Life Insurance Co., 210 N.C. 442, 187 S.E. 583: 'An appeal from a judgment sustaining a plea in bar is not regarded as premature. Royster v. Wright, 118 N.C. 152, 24 S.E. 746; Bethell v. McKinney, 164 N.C. 71, 80 S.E. 162.'

If the jury had answered the issue No, the judgment entered upon the verdict would have been a final judgment disposing of plaintiff's action, and undoubtedly she would have the right to appeal. The judgment here is not a final one disposing of the action, and presents the question whether defendant may appeal at once, or must he note his exception and appeal from the final judgment, if there is one against him. This question is not raised by plaintiff.

The judgment here is not a final judgment which disposes of the case as to all the parties, leaving nothing to be judicially determined between them in the trial court. Only the issue as to the release has been tried. Whether plaintiff was injured by the alleged negligence of the defendant remains for trial. No adverse adjudication has been made which defendant cannot bring forward by an exception and appeal from a final judgment against him, if there should be one. The elimination of defendant's plea in bar cannot prejudice him in the subsequent trial of the issues of negligence and damages, nor does it destroy, or impair, or seriously imperil some substantial right of his.

The appeal here is fragmentary and premature. In consequence, it falls under the ban of the general rule forbidding fragmentary appeals, and must be dismissed. Jenkins v. Trantham, 244 N.C. 422, 94 S.E. 2d 311; Veazey v. Durham, 231 N.C. o54, 57 S.E.2d 375; Privette v. Privette, 230 N.C. 52, 51 S.E.2d 925; Cole v. Farmers Bank & Trust Co., 221 N.C. 249, 20 S.E.2d 54; Yates v. Dixie Fire Insurance Co., 176 N.C. 401, 97 S.E. 209; Yates v. Dixie Fire Insurance Co. (same case), 173 N.C. 473, 92 S.E. 356; Chambers v. Seaboard Airline R. Co., 172 N.C. 555, 90 S.E. 590; Shelby v. Charlotte Electric Light & Power Ry. Co., 147 N.C. 537, 61 S.E. 377; Martin v. Flippin, 101 N.C. 452, 8 S.E. 345; Arrington v. Arrington, 91 N.C. 301; Hines v. Hines, 84 N.C. 122.

While this appeal must be dismissed as fragmentary and premature, we will nevertheless, as was done in Burgess v. Trevathan, 236 N.C. 157, 72 S.E.2d 231, and in Yates v. Dixie Fire Insurance Co., 173 N.C. 473, 92 S.E. 356, exercise our discretionary power to express an opinion upon the question which defendant attempts to raise by his fragmentary and premature appeal.

Plaintiff's evidence is as follows: Her husband's automobile was damaged in the collision. He gave City Chevrolet Company a postdated check for $205.14 to repair the damage. As a result of the collision the door handle and arm rest of the automobile in which she was riding struck her across the back. That night she suffered pain, and next morning went to the hospital. Dr. Page X-rayed her, gave her medicine for pain, and told her to go home. She went home, went to bed, and used a heat lamp. She has been to the hospital, to doctors, and she was not better when the release was signed. She has bought and taken medicine for pain.

A few days after the collision she and her husband were contacted by Robert Gardner, an adjuster for Nationwide Mutual Insurance Company, who was representing defendant. She and her husband talked with Gardner by telephone on several occasions. She and her husband saw Gardner on 22 February 1957, the day the release was signed, at her home. She testified: 'He asked us if we were ready to settle up our claim and my husband had talked with him before that and on that same day before he come out there about my trouble, that I was still having a lot of pain, and he said that didn't make no difference because this wasn't concerning me any way. He told him that this wasn't concerning my injuries, that it was concerning the expense because my husband had told him about the check [postdated] and it was getting up close to that time and we had doctor's and hospital bills and all that and he said that was just to pay his expense up to date.'

In the conversation with Gardner in their home her husband itemized for him the expenses he had had. He had paid his niece $126.00 for staying seven weeks with his wife after the collision, $20.00 for going to the mountains for his niece and carrying her back, $49.00 for his niece's board while she was with his wife, cost of repair to his automobile $205.14, hospital expenses for his wife $50.25, Dr. Page's bill $30.00, a total amount of $480.39. The release recites the payment to plaintiff and her husband of the sum of $480.39.

Plaintiff further testified: 'After we had gone over those items, we talked settling expenses my husband had been out. I didn't get anything. There wasn't anything paid to me. Of course, I signed the checks and the papers, but he said that wasn't concerning mine whatsover. Mr. Gardner produced this paper I referred to. The first time I seen the paper it was all ready for our signature and that is all I noticed, was just the check marks for us to sign. It was filled out when he laid it on the table for me to sign. * * * I did not read that piece of paper before I signed it. He did not read it to me. As to why I signed that paper then, well I was taking him at his word, because I can read, but a lot of things I don't understand when I do read, and I took him at his word. * * * '

Her husband testified: 'I don't know right off what else he did in regard to assuring me that he could settle my claim without settling hers. He went and made a phone call. * * * After he made the...