Herndon v. Massey

• Decision Date: 22 May 1940
• Docket Number: No. 523.,523.
• Citation: 8 S.E.2d 914,217 N.C. 610
• Court: North Carolina Supreme Court
• Parties: HERNDON . v. MASSEY et al.

8 S.E.2d 914

217 N.C. 610

HERNDON .

v.MASSEY et al.

No. 523.

Supreme Court of North Carolina.

May 22, 1940.

Appeal from Superior Court, Mecklenburg County; H. A. Grady, Emergency Judge.

Action by Sally Herndon against Mrs. John M. Massey and others, as directors and trustees of the Young Women's Christian Association of Charlotte, N. C, for personal injuries allegedly resulting from actionable negligence. From a judgment allowing defendants' motion to strike a portion of plaintiff's reply and further reply, plaintiff appeals.

Affirmed.

Civil action to recover damages for injuries allegedly resulting from actionable negligence.

Plaintiff in her complaint, briefly stated, alleges: That defendants are the duly elected, qualified and acting directors and trustees of the Young Women's Christian Association of the city of Charlotte and as such are vested with the title to and are in possession and control of a certain lot in said city and the building thereon, known as the Young Women's Christian Association building, with the authority, power and duty to maintain and operate in said building a swimming pool, in connection with which there are shower, locker and dressing rooms; that an instructor is employed to give swimming lessons; that through newspaper advertisement defendants caused to be offered to the general public a course of instruction in swimming in consideration of the payment of a stated fee or price; that plaintiff, having accepted the offer and enrolled in the swimming class, and paid the required fee, and after attending one of the swimming classes on or about March 24, 1939, and at completion of the course of instruction for the day, and after taking a shower bath in the shower room, proceeded to walk from the shower room to the locker room through the hall customarily used for that purpose, and while so walking through said hall she slipped and fell to the floor and sustained injuries; and that such injuries proximately resulted from the negligence of defendants (a) in failing to cover the floor in the hallway with a mat or other suitable covering; (b)in allowing water and soap, mold and other foreign matter to accumulate and remain on the floor, and (c) in failing to light the hallway.

Defendants, answering, deny negligence and for further defense aver that the Young Women's Christian Association is an unincorporated, religious and charitable organization, not organized for profit; that the land and building in question are held to be used and are used, and the swimming classes were conducted solely for the promotion of the religious and charitable objects of the association; and that defendants caused to be employed persons competent to conduct the said swimming classes and to keep the floor and other parts of the premises in proper condition, and if there were any negligence on the part of any of the employees which resulted in the injury to the plaintiff, which is expressly denied, neither the defendants nor the association would be liable because said organization is a non-profit religious and charitable organization.

Plaintiff replying to the further defense of defendants, alleges: "1. That this plaintiff is informed and believes that the ladies named as defendants do not as individuals receive any pecuniary profit from the Young Women's Christian Association of Charlotte. Except as herein admitted the allegations of paragraph one are denied and in this connection the plaintiff is informed, believes, and alleges that a recovery in this suit will not impair or diminish the property held by the defendants for the purpose of the association for the reason that the defendants have made special arrangements to pay any and all judgments which might be rendered against them on account of their negligence or the negligence of their servants and agents in connection with the operation of the swimming pool and the building referred to in the complaint."

And for a further reply, the plaintiff alleges: "1. That the plaintiff is informed, believes, and alleges that in con-sideration of the payment of the premiums required by it, the Maryland Casualty Company issued a policy of insurance insuring the defendants against liability arising out of the operation of the swimming pool and building referred to; that the said Maryland Casualty Company had received the annual premium and the said policy of insurance was in full force and effect at the time of the injury to the plaintiff; the amount for which the defendants are insured as above set forth is greater than the amount claimed by the plaintiff as damages, and any sum recovered by plaintiff against defendants in this case will, in accordance with said contract of insurance, be paid by the Maryland Casualty Company; and the property held by the defendants for the purpose of the association will not be decreased or diminished because of any judgment recovered in this action."

Pursuant to provisions of C.S. § 510 and C.S. § 537, defendants moved to strike the quoted portion of paragraph 1 of plaintiff's reply beginning with the words: "In this connection", and the whole of paragraph 1 of plaintiff's further reply. The motion was allowed. Plaintiff, reserving exception thereto, appeals to the Supreme Court and assigns error.

David J. Craig Jr., of Charlotte, for plaintiff-appellant.

Robinson & Jones, of Charlotte, for defendants-appellees.

WINBORNE, Justice.

We are of opinion that the court properly ruled in striking out as irrelevant or redundant the matter inserted by plaintiff in the paragraphs designated and as quoted in the foregoing statement of facts.

It may be noted that the authorities are extremely divergent on the subject of liability of charitable institutions for injuries resulting from the negligence of their agents or employees. See Annotations 14 A.L.R. 572; 23 A.L.R. 923; 30 A.L.R. 455; 33 A.L.R. 1369; 42 A.L.R. 971; 62 A.L.R. 724; 67 A.L.R. 1112; 86 A.L.R. 491; 109 A. L.R. 1199. (a) The courts of some jurisdictions deny all liability, (b) Some hold such institutions as much subject as other-, to the doctrine of respondeat superior, (c) But the majority hold that in relation to those who receive benefits provided by it, a charitable institution is not liable for the negligence of its agents or employees if it has exercised reasonable care in their selection and retention. See Annotations 109 A.L.R. 1199, at page 1201.

It is noted also that the decisions of this Court are in harmony with the view of the majority. Green v. Biggs, 167 N.C. 417, 83 S.E. 553; Hoke v. Glenn, 167 N.C. 594, 83 S.E. 807, Ann.Cas. 1916E, 250.

The complaint should contain "a plain and concise statement of the factsconstituting a cause of action, without unnecessary repetition". C.S. § 506. In reply to answer of defendant, plaintiff "may allege in ordinary and concise language, without repetition, any new matter not inconsistent with the complaint, constituting a defense to the new matter in the answer". C.S. § 525. But the statute C.S. § 537 provides that "if irrelevant or redundant matter" be inserted in a pleading, upon motion of the party aggrieved thereby, it may be stricken out. Where such motion has been made in apt time, "it is not addressed to the discretion of the court, but is made as a matter of right". Tar Heel Hosiery Mill v. Hosiery Mills, 198 N.C. 596, 152 S.E. 794, 795; Federal Reserve Bank v. Atmore, 200 N.C. 437, 157 S.E. 129; Patterson v. Southern R. Co., 214 N.C. 38, 198 S.E. 364.

In Pemberton v. Greensboro, 203 N.C. 514, 166 S.E. 396, 397, this Court said: "It is readily conceded that nothing ought to be in a complaint, or remain there over objection, which is not competent to be shown on the hearing. C.S. § 506; 21 R.C. L. 452". This principle as stated has been quoted and paraphrased in numerous more recent decisions. Patterson v. Southern R. Co., supra; Virginia Trust Co. v. Dunlop, 214 N.C. 196, 198 S.E. 645; Duke v. Crippled Children's Commission, 214 N.C. 570, 199 S.E. 918; Wadesboro v. Coxe, 215 N.C. 708, 2 S.E.2d 876; Hildebrand v. Tel. Co, 216 N.C. 235, 4 S.E.2d 439.

In Duke v. Crippled Children's Commission supra, reversing ruling of the Court in refusing to strike out a paragraph of the complaint in which matter similar to that first in question here was inserted, Schenck, J, said [214 N.C. 570, 199 S.E. 919]: "It has been repeatedly held by this Court that in an action for damages for a personal injury evidence that the defendant's liability for the act complained of has been insured by a third person, is ordinarily incompetent. Lytton v. Mfg. Co., 157 N.C. 331, 72 S.E. 1055, Ann.Cas. 1913C, 358; Luttrell v. Hardin, 193 N.C. 266, 269, 136 S.E. 726, and cases there cited, Scott v. Bryan, 210 N.C. 478, 187 S.E. 756, and cases there cited. By the same token that evidence that the defendant is insured in a casualty company is incompetent, evidence that 'the defendant has made special arrangements to pay any and all judgments that might be rendered against it...