Hensley v. McDowell Furniture Co.

• Decision Date: 03 December 1913
• Citation: Hensley v. McDowell Furniture Co., 164 N.C. 148, 80 S.E. 154 (N.C. 1913)
• Parties: HENSLEY v. MCDOWELL FURNITURE CO.
• Court: North Carolina Supreme Court

80 S.E. 154

164 N.C. 148

HENSLEY v. MCDOWELL FURNITURE CO.

Supreme Court of North Carolina

December 3, 1913

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).

If the facts are truthfully stated in the affidavit of L. J. P. Cutlar, it is apparent that the Maryland Casualty Company has made no such contract with its codefendant, 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. "Discernere 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 and exact justice, we will yet not supervise it, except, perhaps, in extreme circumstances, not at all likely to arise; and it is therefore practically unlimited. We do not interfere unless the discretion is abused. Jarrett v. Trunk Company, 142 N.C. 466, 55 S.E. 338.

These observations seem to be necessary in view of what we said (by Justice Hoke) in Clark v. Bonsal, 157 N.C. 270...