Durham Bank & Trust Co. v. Pollard, 665

• Decision Date: 13 December 1961
• Docket Number: No. 665,665
• Court: North Carolina Supreme Court
• Parties: DURHAM BANK & TRUST COMPANY and Burwell A. Allen, Administrators of the Estate of Charies Snead Allen, Deceased, v. Forrest A. POLLARD.

Page 104

123 S.E.2d 104

256 N.C. 77

DURHAM BANK & TRUST COMPANY and Burwell A. Allen,

Administrators of the Estate of Charies Snead

Allen, Deceased, v. Forrest A. POLLARD.

No. 665

Supreme Court of North Carolina.

Dec. 13, 1961

McLendon, Brim, Holderness & Brooks by L. P. McLendon, Jr., by J. V. Hunter, III, Greensboro, for defendant, appellant.

Brooks & Brooks by E. C. Brooks, Jr., Greensboro, for plaintiffs, appellees.

PARKER, Justice.

This is an action to recover damages for the death of plaintiffs' intestate, Charles Snead Allen, allegedy caused by the wrongful act of the defendant, Forrest A. Pollard, in slaying him on 24 April 1960.

Defendant in apt time filed a written motion to strike from the complaint paragraphs 3, 4, 7, 8, 10, 11, 12, 13, 15, 18, 19, 20 and 23, and parts of paragraphs 14 and 22. Judge Williams in his order allowed the motion to strike as to paragraphs 3, 4, 7, 13 and 15, and as to parts of paragraphs 14 and 22. He denied the motion to strike as to paragraphs 8, 10, 11, 12, 18, 19, 20 and 23. We allowed, as stated above, defendant's petition for a writ of certiorari to review Judge Williams's order denying defendant's motion to strike from the complaint the paragraphs specified above.

Defendant has two assignments of error: One, Judge William's denial of his motion to strike paragraphs 8 and 18 of the complaint. Two, his denial of his motion to strike paragraph 19 of the complaint.

This is stated in defendant's brief: 'The defendant also excepted to the failure of the Trial Court to strike Paragraphs 10, 11, 12, 20, and 23, but defendant now desires to abandon those exceptions.'

Paragraph 8 of the complaint reads:

'Plaintiffs are informed and believe and therefore allege that on Monday, September 12, 1960, trial of the said Forrest A. Pollard was commenced in the Durham County Superior Court, Criminal Division, and said trial continued to September 17, 1960, at which time the jury, after deliberation, returned a verdict which convicted the defendant of manslaughter. That the said Forrest A. Pollard, pursuant to an Order of the Court, was imprisoned in the State's Prison at Raleigh, N. C., for a term of twenty years and no appeal to the Supreme Court of North Carolina, from the above sentence, was ever perfected.'

Paragraph 18 of the complaint reads:

'Plaintiffs are informed and believe, and therefore allege, that on the night of April 23, 1960, the said defendant Forrest A. Pollard went to the home of Charles Snead Allen; that shorty thereafter he left the home and went to his automobile to obtain his shotgun; that the said Charles Snead Allen was in the front yard of his own home when the said Forrest A. Pollard, with force and arms, did feloniously and willfully kill and slay the said Charles Snead Allen. That, as hereinbefore alleged, the said Forrest A. Pollard was later indicted by a Grand Jury of Durham County, was tried and convicted by a jury impaneled in Durham County, of feloniously and willfully killing and slaying the said Charles Snead Allen, in violation of the laws of the State of North Carolina.'

G.S. § 1-153 reads: 'If irrelevant or redundant matter is inserted in a pleading, it may be stricken out on motion of any person aggrieved thereby, but this motion must be made before answer or demurrer, or before an extension of time to plead is granted.' As defendant made his motion in apt time, he can claim the benefits of the statute as a matter of right, rather than of grace. Daniel v. Gardner, 240 N.C. 249, 81 S.E.2d 660; Brown v. Hall, 226 N.C. 732, 40 S.E.2d 412; Hill v. Stansbury 221 N.C. 339, 20 S.E.2d 308.

This is said in Daniel v. Gardner, supra [240 N.C. 249, 81 S.E.2d 662]: '1. Allegations which set forth matters foreign and immaterial to the controversy are considered irrelevant; whereas, excessive fullness of detail or the repetition of facts are treated as being redundant. (Citing authority). 2. On motion to strike, the test of relevancy is the right of the pleader to present in evidence upon the trial the facts to which the allegations relate. (Citing authority). 3. Nothing should remain in a pleading over objection which is incompetent to be shown in evidence. (Citing authority). 4. The function of a pleading is not the narration of the evidence, but rather the statement of the substantive, ultimate facts upon which the right to relief is founded.'

'The denying or overruling 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.' Hinson v. Britt, 232 N.C. 379, 61 S.E.2d 185, 187.

The general and traditional rule supported by a great majority of the jurisdictions is that, in the absence of a statutory provision to the contrary, evidence of a conviction and of a judgment therein, or of an acquittal, rendered in a criminal prosecution, is not admissible in evidence in a purely civil action to establish the truth of the facts on which the verdict of guilty or of acquittal was rendered, or when there is a verdict of acquittal to constitute a bar to a subsequent civil action based on the same facts. White the same facts may be involved in two cases, one civil and the other criminal, the parties are necessarily different, for, whereas one action is prosecuted by an individual, the other is maintained by the state. Warren v. Pilot Life Ins. Co., 215 N.C. 402, 2 S.E.2d 17; Smith v. New Dixie Lines, 201 Va. 466, 111 S.E.2d 434; Crawford v. Sumerau, 100 Ga.App 499, 111 S.E.2d 746; Interstate Dry Goods Stores v. Williamson, 91 W.Va. 156, 112 S.E. 301, 31 A.L.R. 258; State v. Fitzgerald, 140 Me. 314, 37 A.2d 799; Neibling v. Terry, 352 Mo. 396, 177 S.W.2d 502, 152 A.L.R. 249; Nowak v. Orange, 349 Pa. 217, 36 A.2d 781; Auslander v. Pennsylvania R. Co., 350 Pa. 473, 39 A.2d 595; Krowka v. Colt Patent Fire Arm Mfg. Co., 125 Conn. 705, 8 A.2d 5; Seidman v. Seidman, 53 R.I. 96, 164 A. 194; Silva v. Silva, 297 Mass. 217, 7 N.E.2d 601; Montgomery v. Crum, 199 Ind. 660, 161 N.E. 251; Cottingham v. Weeks, 54 Ga. 275; Annotations, 31 A.L.R. 262, 57 A.L.R. 504, 80 A.L.R. 1145, 130 A.L R. 690, 18 A.L.R.2d 1290 and 1299, where many cases from many jurisdictions are cited; 4 Am.Jur., Assault and Battery, § 156; 20 Am.Jur., Evidence, § 1011; 50 C.J. S., Judgments, § 754, b, (1), p. 269.

In this connection it is apposite to cite our following decisions: Watters v. Parrish, 252 N.C. 787, 115 S.E.2d 1; Swinson v. Nance, 219 N.C. 772, 15 S.E.2d 284; Briggs v. Briggs, 215 N.C. 78, 1 S.E.2d 118. In the Watters case we held that the testimony on cross-examination of one defendant by another defendant that the questioned defendant had been convicted of driving while under the influence of intoxicating liquor as a result of the collision of automobiles on which the civil action for damages for personal injuries, in which he was testifying, was based was incompetent for the purpose of impeaching him as a witness. In the Briggs case we held: A judgment in a criminal action for abandonment is not res judicata as to the wife's right to counsel fees and support pending litigation of a suit for divorce thereafter instituted by the husband, the defendant in the criminal action.

There are exceptions to, and limitations of this general and traditional rule, which are not applicable here, for instance in an action for malicious prosecution or false arrest. 50 C.J.S., Judgments, § 754, b, (2), p. 273; 20 Am.Jur., Evidence, § 1012.

There is a minority rule which approves of the admission in civil actions of a previous criminal conviction as evidence of the facts upon which it was based. Annotations 31 A.L.R. 275, 57 A.L.R. 505, 80 A.L.R. 1147, 130 A.L.R. 695, 18 A.L.R.2d 1299, where such cases are given. However, many, if not most, of the leading cases approving of such admission seem to have involved the situation where the convicted criminal seeks to take advantage of rights arising from the crime for which he has been convicted. Eagle, Star & British Dominions Ins. Co. v. Heller, 149 Va. 82, 140 S.E. 314, 57 A.L.R. 490; Anno. 18 A.L.R.2d 1300 et seq., where many cases to this effect are analyzed and cited.

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