Greene v. Charlotte Chemical Laboratories, Inc., 235

Citation254 N.C. 680,120 S.E.2d 82
Decision Date24 May 1961
Docket NumberNo. 235,235
CourtUnited States State Supreme Court of North Carolina
PartiesGeorge L. GREENE, Plaintiff, v. CHARLOTTE CHEMICAL LABORATORIES, INC., a corporation, and Suggs Wrecking & Removal Company, Inc., a corporation, Defendants.

Uzzell & Dumont, Asheville, Craighill, Rendleman & Clarkson, Charlotte, for defendant Charlotte Chemical Laboratories, Inc., appellant.

William T. Grist, Warren C. Stack and William E. Graham, Jr., Charlotte, for plaintiff, appellee.

Clayton & London, Pierce, Wardlow, Knox & Caudle, Charlotte, for defendant Suggs Wrecking & Removal Company, Inc., appellee.

MOORE, Justice.

Five questions are here presented for determination.

(1) Did the court below err in striking from the amended answer of defendant Laboratory Exhibit A (the contract between Suggs and Laboratory) and the references thereto contained in paragraphs 2, 3, 4 and 5(d) of the Seventh Further Answer and Defense?

The provisions of the contract requiring Suggs to carry liability insurance for the protection of Laboratory are not relevant or material to plaintiff's cause of action or to any defense available to Laboratory. Any reading of these provisions or reference thereto in the presence of the jury would, over objection, constitute prejudicial error. The fact that defendants in a negligence action are protected by liability insurance can throw no light on the question of negligence or other circumstances of the accident and is inadmissible in evidence. Stansbury: North Carolina Evidence, s. 88, p. 163. Nothing should remain in a pleading, over objection, which is incompetent to be introduced in evidence. Daniel v. Gardner, 240 N.C. 249, 251, 81 S.E.2d 660. A policy of liability insurance is for the protection and indemnity of those insured by it, and in an action by an injured party against insured all references to such insurance is prejudicial, and all such references should be stricken from the pleadings. Jordan v. Maynard, 231 N.C. 101, 103, 56 S.E.2d 26.

The contract, Exhibit A, not only requires Suggs to carry liability insurance for Laboratory's protection but specifies minimum limits. If the insurance is injected into the case, it can conceivably prejudice both plaintiff and Suggs. A party to an action is entitled to have stricken irrelevant matters which are prejudicial to him. Council v. Dickerson's, Inc., 233 N.C. 472, 476, 64 S.E.2d 551; Patterson v. Southern R. R., 214 N.C. 38, 42, 198 S.E. 364.

Furthermore, Suggs' agreement to hold Laboratory 'harmless from any and all loss or liability of any nature in connection with the demolition of said buildings and any of its activities in connection therewith' is a matter which concerns Suggs and Laboratory only. Plaintiff is not privy thereto. Therefore, it is not germane to plaintiff's cause of action, and the determination of the rights and liabilities of defendants with respect to this agreement of indemnity is not necessary to a conclusion of plaintiff's cause of action. Only matters relevant to the original or primary action in which all parties have a community of interest may be litigated. Wrenn v. Graham, 236 N.C. 719, 721, 74 S.E.2d 232; Montgomery v. Blades, 217 N.C. 654, 656, 9 S.E.2d 397.

In Clark v. Pilot Freight Carriers, 247 N.C. 705, 102 S.E.2d 252, 255, an original defendant set up a cross-action against an additional defendant and alleged an implied contract to indemnify original defendant with respect to injuries to original defendant's employees. The trial court allowed the motion of additional defendant to strike the cross-action. This Court affirmed the ruling and said: '* * * it was discretionary with the trial judge as to whether or not (original defendant) would be permitted to litigate its claim under the implied contract of indemnity against (additional defendant) in this action.'

In Gaither Corporation v. Skinner, 238 N.C. 254, 77 S.E.2d 659, 661, the owner of a building sued his contractor for breach of contract because of defects in a roof. Contractor sought to join his subcontractor (who had installed the roof) as an additional party defendant, on the ground that the subcontractor had failed to do the work according to specifications and was therefore liable to the owner and contractor. Contractor asked for recovery over against subcontractor. The trial court refused to make the subcontractor an additional party defendant. This Court sustained the ruling of the trial court and declared: 'The plaintiff has elected to pursue his action against the contractor with whom he contracted in order to recover damages for an alleged breach of that contract, and plaintiff should be permitted to do so without having contested litigation between the contractor and his sub-contractor projected into the plaintiff's lawsuit. ' Accord: Board of Education of Perquimans County v. Deitrick, 221 N.C. 38, 18 S.E.2d 704.

In Eledge v. Carolina Power & Light Co., 230 N.C. 584, 55 S.E.2d 179, the original defendant set up a cross-action based on an indemnity contract against additional defendants. This Court affirmed the ruling of the trial court in striking the cross-action.

A cause of action independent of and unrelated to the original and primary action may not be litigated in the latter action. Wright's Clothing Store v. Ellis Stone & Co., 233 N.C. 126, 131, 63 S.E.2d 118.

Laboratory contends that it has the right to set out the contract in full inasmuch as the contract is referred to in the complaint. The reference in the complaint is only for the purpose of explaining the presence of Suggs on the premises. Portions of a contract may be relevant and competent, and portions immaterial and incompetent, in a suit not based on the contract. A pleading should contain allegations of ultimate relevant facts, not evidential facts. G.S. § 1-222. Even in a suit on a contract, the contract need not be set out in full in the pleadings. City of Wilmington v. Schutt, 228 N.C. 285, 45 S.E.2d 364.

In the instant case relevant parts of the contract may be pleaded and offered in evidence, but not irrelevant and prejudicial provisions. The portions of the contract which tend to explain Suggs' presence and activities on the premises of Laboratory on Templeton Avenue are competent and material, also the portion tending to show Laboratory's ownership of and relation to the premises and property. For this reason the allegations of paragraphs 3 and 4 of the Seventh Further Answer and Defense are permissible and should not have been stricken. We express no opinion as to whether or not the facts alleged in these paragraphs conform to pertinent terms of the contract.

Paragraph 5(d) of the Seventh Further Answer and Defense contains a mere conclusion of the pleader, that Suggs 'negligently failed to comply with the terms and provisions of the written contract. ' The Seventh Further Answer and Defense fails to state any facts upon which the conclusion is based. Furthermore, an omission to perform a contractual obligation is never a tort unless such omission is also the omission of a legal duty. Council v. Dickerson's, Inc., supra; Miller's Mutual Fire Insurance Association of Alton, Illinois v. Parker, 234 N.C. 20, 23, 65 S.E.2d 341.

(2) Did the court err in sustaining defendant Suggs' demurrer ore tenus to defendant Laboratory's plea (paragraph 8 of the Seventh Further Answer and Defense) that Suggs had the 'last clear chance' to avoid the accident and injury to plaintiff?

The doctrine of last clear chance cannot be invoked as between defendants concurrently negligent. 38 Am.Jur., Negligence, § 227, p. 912. The doctrine arises only when plaintiff is guilty of contributory negligence, and one defendant may not resist recovery by plaintiff on the ground that a co-defendant had the last clear chance to avoid the accident. Taylor v. Rierson, 210 N.C. 185, 189, 185 S.E. 627. The doctrine has application only as between plaintiff and a defendant. The doctrine as applied in this jurisdiction is defined and explained in Irby v. Southern R. R., 246 N.C. 384, 391, 98 S.E.2d 349, 70 A.L.R.2d 1; and Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 448, 35 S.E.2d 337.

Under the facts as alleged in the instant case the last clear chance doctrine is not available, even to plaintiff. It is certainly not a proper pleading for defendant Laboratory since it has not set up a counterclaim. 'Viewed as a phase of the principle of proximate cause, the doctrine of last clear chance negatives an essential element of contributory negligence by rendering plaintiff's negligence a mere condition or remote cause of the accident.' 38 Am.Jur., Negligence, § 216, p. 903.

Laboratory contends that the allegation of 'last clear chance' is an affirmative defense and Suggs is in no position to question it. As already stated, it does not arise in this case. But, as Laboratory erroneously seeks to apply it, the plea proposes to place responsibility on Suggs and to relieve Laboratory. It is true that 'a mere defense made by one codefendant is not subject to demurrer by the other defendant * * *. ' Bargeon v. Seashore Transportation Co., 196 N.C. 776, 777, 147 S.E. 299, 300. But an irrelevant allegation by one defendant may be stricken by a co-defendant when prejudicial to the latter. Council v. Dickerson's, Inc., supra.

The court properly sustained the demurrer ore tenus.

(3) Did the court err in striking paragraph 9 of the Seventh Further Answer and Defense in which defendant Laboratory alleges that its negligence, if any, imposes only secondary liability and that defendant Suggs is primarily liable?

Where one joint tort-feasor is only passively negligent, but is exposed to liability through the positive acts and actual negligence of the other, the parties are not in equal fault as to each other, though both are equally liable to the injured party. Where one does the act which produces the injury, and the other does not join in the act, but is thereby exposed to liability...

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