Hensley v. Mcdowell Furniture Co

Decision Date03 December 1913
PartiesHENSLEY v. McDOWELL FURNITURE CO.
CourtNorth Carolina Supreme Court
1. Parties (§ 90*)—Actions—Misjoinder of Parties.

Where it appears at the trial that an injured servant, in his suit against the master, has improperly joined one who had insured the master against liability, the court should direct judgment for the insurer, and in the exercise of its discretion should protect the rights of the master by continuance of the case or otherwise.

[Ed. Note.—For other cases, see Parties, Cent. Dig. § 148; Dec. Dig. § 90.*]

2. Appeal and Error (§ 949*)—Review—"Judicial Discretion."

The "judicial discretion" which is to be exercised by the court upon improper joinder of parties means sound legal discretion, and will not be interfered with on appeal unless abused.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3835; Dec. Dig. § 949.*

For other definitions, see Words and Phrases, vol. 4, pp. 3855, 3856; vol. 8, p. 7697.]

3. Master and Servant (§ 254*)—Injuries to Servant—Liability of Insurer.

One who insures an employer against liability for personal injuries to his servant is not a proper party to an action by the servant for personal injuries, unless the contract expressly provides that it is for the benefit of the injured employes and the payment of recoveries by them.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 808; Dec. Dig. § 254.*]

4. Pleading (§ 367*)Motions to Make More Definite and Certain—Time for Filing.

Under Revisal 1908, § i06, providing that irrelevant or redundant miltter in a pleading may be stricken on motion before answer or demurrer, or before an extension of time to plead is granted, and that, if the pleading is indefinite or uncertain the court may require it to be made definite and certain, motions to make a pleading more definite and certain must be made in apt time before answer or demurrer, and if not made within time the granting of the motion rests within the discretion of the judge.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 64, 1173-1193; Dec. Dig. § 367.*]

5. Appeal and Error (§ 960*)—Review-Discretion.

A ruling by the trial judge on a motion to make a pleading more definite and certain, not filed in apt time, will not be reviewed unless themotion is refused on the ground of the judge's supposed want of power.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3825, 3832-3834; Dec. Dig. § 960.*]

6. Pleading (§ 367*)Motions to Make More Definite and Certain—Power of Judge.

While the trial court may, under Revisal 190S, § 496, require a plaintiff to make his pleading more definite and certain, he cannot plead for him or require him to plead any given instrument. Hence in a personal injury action, where the servant joined the insurer with the master, it was improper for the court to require the complaint to set out a copy of the contract of instirance.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 64, 1173-1193; Dec. Dig. § 367.*]

Appeal from Superior Court, McDowell County; Justice, Judge.

Action by J. W. Hensley against the McDowell Furniture Company. From an order sustaining defendant's motion to make the complaint more definite and certain, and requiring plaintiff to annex a document thereto, plaintiff appeals. Modified.

Plaintiff sued for damages resulting from personal injury to himself, alleged to have been caused by the negligence of the furniture company, one of the defendants. Afterwards the Maryland Casualty Company was made a defendant. The following order appears in the case: "The defendant (casualty company) then offers the affidavit of L. J. P. Cutlar, which is filed in the record together with the policies, and the same not being denied by affidavit, and the court having found same to be true, it moves for a bill of particulars making the pleading as to the contract certain, and that the pleading be made more definite and certain, which motion is granted and order made that plaintiff be required to append such contract or copy thereof to the allegation in his complaint relating to said company, and that all proceedings in this cause be stayed until the complaint is so amended." The affidavit mentioned simply alleged that two policies, copies of which are attached, were the only indemnity or insurance contracts the company issued during the period stated in them, and one of them was in force at the time of the injury. As stated above, the court, upon this simple allegation, required the plaintiff to make his complaint more definite and certain under Revisal 1908, § 496, and also that he annex thereto a copy of the contract set out in affidavit and exhibit Plaintiff excepted and appealed.

W. T. Morgan and Johnston & McNairy, all of Marion, and C. B. McBrayer, of Shelby, for appellant.

Pless & Winborne, of Marion, for appellee.

WALKER, J. (after stating the facts as above). [1, 2] If the facts are truthfully stated in the affidavit of L. J. P. Cutlar, it is apparent that the Maryland Casualty Com pany has made no such contract with its co-defendant, McDowell Furniture Company, as is alleged in the complaint, for the reason that the policy, which is set out in full and annexed to the affidavit, will bear no such construction as the plaintiff has put upon it, but a very different one in fact and in law, and it may be further said that if the contract subsisting between the defendants, at the time of the injury, is correctly set forth in the copy annexed to the affidavit, then the casualty company has been improperly joined as a defendant, and if, at the trial, the facts should so appear, the court should enter judgment in its favor and against the plaintiff for its costs, and continue the case against the other defendant, or take such other measure for its protection, if it shall appear to have been prejudiced by the joinder in making its defense before the jury then impaneled to try the cause. We must leave these matters largely to the exercise of the presiding judge's discretion, who can better understand the exigencies of the particular case, under the circumstances, than we can. He should, and no doubt in all cases will, use this discretion with judgment, not timidly, but with firmness and courage, and yet judiciously, for the purpose intended, so that each of the parties may have a fair and impartial trial under the law and facts, without any extraneous influences or considerations which may tend to defeat the true and even administration of justice, which is the ultimate and principal object of all well-ordered judicial systems. Judicial discretion, said Coke, is never exercised to give effect to the mere will of the judge, but to the will of the law. The judge's proper function, when using it, is to discern according to law what is just in the premises. "Dlscernere per legem quid sit justum." Osborn v. Bank, 9 Wheat. 738, 6 L. Ed. 204. When applied to a court of justice, said Lord Mansfield, "discretion" means sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague, and fanciful, but legal and regular. 4 Burrows, 2539. While the necessity for exercising this discretion, in any given case, is not to be determined by the mere inclination of the judge, but by a sound and enlightened judgment, in an effort to attain the end of all law, namely, the doing of even...

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53 cases
  • Small v. Morrison
    • United States
    • United States State Supreme Court of North Carolina
    • June 8, 1923
    ......347;. Clark v. Bonsal, 157 N.C. 270, 72 S.E. 954, 48 L. R. A. (N. S.) 191; and Hensley v. Furniture Co., 164. N.C. 148, 80 S.E. 154. . .          The. principle ......
  • Small v. Morrison
    • United States
    • United States State Supreme Court of North Carolina
    • June 8, 1923
    ......E. 347; Clark v. Bonsai, 157 N. C. 270, 72 S. E. 954, 48 L. R. A. (N. S.) 191; and Hensley v. Furniture Co., 164 N. C. 148, 80 S. E. 154.          The principle announced in ......
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    ......E. 570, 13 L. R. A. [N. S.] 966; State v. Burney, 162 N. C. 614, 77 S. E. 852). In Hensley v. Furniture Co., 164 N. C. 148, 80 S. E. 154, Mr. Justice Walker expressed the court's ......
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    ...... was characterized by abuse of the judicial discretion vested. in the judge below. Hensley v. Furniture Co., 164. N.C. 148, 80 S.E. 154. Defendant's exception on that. ground cannot be ......
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