Jordan v. Maynard

• Decision Date: 09 November 1949
• Docket Number: 457
• Citation: 56 S.E.2d 26,231 N.C. 101
• Parties: JORDAN v. MAYNARD et al.
• Court: North Carolina Supreme Court

56 S.E.2d 26

231 N.C. 101

JORDAN v. MAYNARD et al.

No. 457

Supreme Court of North Carolina

November 9, 1949

Plaintiff, a customer in the store of defendant Maynard, sat or attempted to sit in a chair provided for customers. The chair slipped or skidded out from under her causing certain personal injuries. She makes allegations of negligence in the construction of the chair and the condition of the floor.

Thereafter a claim adjuster or agent of the defendant insurance company informed the plaintiff that it carried insurance upon the defendant Maynard to protect him against liability for such injuries as she had sustained, and that it desired the plaintiff to have all necessary and proper medical, surgical hospital, and nursing treatment on account of her said injuries, and that it would pay the expense of the same. Subsequent thereto she incurred hospital, doctors' and nurses' bills.

Plaintiff now prays recovery against both defendants for the injuries sustained and the expenses incurred. Each defendant demurred for misjoinder of parties and causes of action. The demurrers were overruled and defendants appealed.

Simms & Simms, Raleigh, for plaintiff appellee.

Smith Leach & Anderson, Raleigh, for defendant appellants.

BARNHILL Justice.

The defendant insurance company, in this Court, interposed demurrer ore tenus for that the complaint fails to state a cause of action against it in that the alleged promise by its agent, if made, was without consideration and is therefore unenforceable. The demurrer is well advised and must be sustained. Stonestreet v. Southern Oil Co., 226 N.C. 261, 37 S.E.2d 676.

So far as this record discloses, the insurance company was under no contractual duty to plaintiff to provide hospital and medical care for her. The assurance of its claim adjuster or employee that the company would pay the expenses of hospitalization including the charges of the doctors and nurses was voluntary and without consideration. Hence, aside from the question of authority, which is not now at issue, it imposed no liability enforceable in a court of law.

Since no cause of action is stated as against the defendant insurance company, there is no misjoinder of parties and causes of action. Shaw v. Barnard, 229 N.C. 713, 51 S.E.2d 295.

In an action ex delicto for damages proximately caused by the alleged negligence of the defendant, his liability insurance carrier is not a proper party defendant. Clark v. Bonsal & Co., 157 N.C. 270, 72 S.E. 954, 48 L.R.A., N.S., 191; Johnson v. Hoffler & Boney Transfer Co., 204 N.C. 420 168 S.E. 495; Scott v. Bryan, 210 N.C. 478, 187 S.E. 756. The contract is made for the protection and indemnity of the insured, fortifying...