Lutz Industries v. Dixie Home Stores

• Citation: 242 N.C. 332,88 S.E.2d 333
• Decision Date: 30 June 1955
• Docket Number: No. 306,306
• Court: North Carolina Supreme Court
• Parties: LUTZ INDUSTRIES, Inc., successors to Lutz Hosiery Mill, Inc. v. DIXIE HOME STORES, a corporation, and Robert A. Gibbons and Henry M. Smith, t/a Gibbons & Smith.

Page 333

88 S.E.2d 333

242 N.C. 332

LUTZ INDUSTRIES, Inc., successors to Lutz Hosiery Mill, Inc. v. DIXIE HOME STORES, a corporation, and Robert A. Gibbons and Henry M. Smith, t/a Gibbons & Smith.

No. 306

Supreme Court of North Carolina.

June 30, 1955

W. H. Strickland and Alfred R. Crisp, Lenoir, for plaintiff, appellee.

Adams & Adams, Asheville, and Mull, Patton & Craven, Morganton, for defendant, appellant Dixie Home Stores.

Townsend & Todd, Lenoir, for defendant, appellant Gibbons & Smith.

PARKER, Justice.

The defendants Gibbons and Smith state in their brief that both appellants present the same questions for determination, and therefore they adopt in toto the brief filed by their co-defendant, the Dixie Home Stores, and abandon any of their assignments of error, which are not carried forward and discussed in the brief of their co-defendant. The Dixie Home Stores has not carried forward and discussed in its brief the denial of the court to strike any allegations, except those contained in its own motion. Therefore, we are concerned with identical motions to strike and to make more definite certain parts of the Complaint.

The defendants having made their motions to strike in apt time, G.S. § 1-153, it is made as a matter of right. Daniel v. Gardner, 240 N.C. 249, 81 S.E.2d 660; Brown v. Hall, 226 N.C. 732, 40 S.E.2d 412. Upon motion irrelevant allegations in a pleading should be stricken. The test is, does the pleader have a right to introduce in evidence the facts to which the allegation relates? If so, the motion should be denied: if not, it should be allowed. Daniel v. Gardner, supra; Penny v. Stone, 228 N.C. 295, 45 S.E.2d 362. The denial of a motion to strike made in apt time 'is not ground for reversal unless the record affirmatively reveals these two things: (1) That the matter is irrelevant or redundant; and (2) that its retention in the pleading will cause harm or injustice to the moving party. ' Hinson v. Britt, 232 N.C. 379, 61 S.E.2d 185, 187.

Assignments of error Nos. 3, 4, 6 and 8 of the Dixie Home Stores, and assignments of error Nos. 5, 6, 9 and 12 of Gibbons & Smith refer to the same allegations of the Complaint, which allegations in substance state that the defendants in making certain electrical installations violated the provisions of the National Electrical Code of 1951, the standard adopted by the National Board of Fire Underwriters, which violation proximately caused a fire destroying the property described in the Complaint. These allegations are contained in Paragraphs 7, 8, 13 and 14 of the Complaint.

The relevant part of Paragraph 7 follows--the words asked to be stricken are emphasized: 'That the defendant corporation, through its agents, Gibbons and Smith, carelessly, wantonly and recklessly, and strictly in violation of the National Electrical Code of 1951, which is the standard adopted by the National Board of Fire Underwriters for electrical wiring and electrical apparatus, and also which has been adopted by the City of Lenoir, in the following, to-wit: That in illegally installing its equipment in violation of said code the defendant corporation violated said code in the following particulars: (a) That in a group of 7 compressors that were fed by a feeder consisting of two No. 4 and one No. 6 wires, feeding a distance of about 100 feet from a 100 ampere to two fuse switches; that the supply was 120/240 volts, 60 cycle; that type R wire was used with a volt carrying capacity of 70 amperes, whereas according to the electrical code a feeder capacity of 82- 15/100 ampere capacity was required. (b) That three feeders from a junction box, the second feeder consisted of two No. 6, five No. 12 and one No. 8 wire in a one-inch conduit; that this No. 1 size of wire exceeded the 40% fill allowed by Table 11, Chapter 10 of the Electrical Code above referred to; that the third feeder consisted of two No. 6, two No. 12 and one No. 8 wires in oneinch conduit; that this exceeded the 40% fill allowed by Table 11, Chapter 10 of the Electrical Code, and that both of said items were in violation of said code. (c) That the three feeders above mentioned fed 7 safety switches, one for each compressor. The safety switches connected with the two-inch conduit mentioned above and were used as a junction point with wires feeding through and in some cases splicing in the switches; that this was in violation of Code Section 3737-b. (d) That the motor controllers used for the compressors were not according to the code, and therefore in violation of the National Electrical Code. (e) That the 7 compressors were installed and wired in violation of the Code, in the following manner--(here follows a description of how each compressor was installed and wired). All of these installations were in violation of section 2405 of the National Electric Code, and particularly Table 28, Chapter 10, which requires two over current devices in each of the compressor units named.'

The relevant parts of Paragraph 8, with the words asked to be stricken emphasized, are: 'That the defendants, Gibbons and Smith, agents of the defendant, Dixie Home Stores, a corporation, knew or should have known the requirements of the National Electric Code hereinbefore referred to, and that it was their duty to and they should have refrained from making an installation in connection with the use of a dangerous instrumentality, to-wit: electricity, contrary to the provisions of said code * *.'

The relevant parts of Paragraph 13, with the words asked to be stricken emphasized, follow: 'Dixie Home Stores knew or should have known that * * * electricity was highly dangerous in nature, and that in dealing with said instrumentality the defendant corporation and its agents knew or should have known that they were required to install the wiring and electrical fixtures as hereinbefore alleged, in accordance with the National Electric Code of 1951. That the defendant corporation, Dixie Home Stores, knew or should have known that before turning the electric current into said installations that they were required to have the said installations inspected by the city inspector of the City of Lenoir; that notwithstanding these facts the defendant corporation, Dixie Home Stores, unlawfully, wilfully, wantonly and in a grossly negligent manner installed said electrical wiring and electrical fixtures in the building belonging to O. P. Lutz Furniture Company, Inc., in violation of the National Electrical Code and its failure to have the same inspected as required by the ordinance of the City of Lenoir. Reference to which ordinance, Article 3, entitled 'Electrical Inspection' is hereby referred to and made a part hereof as fully as if incorporated herein, and a certified copy of said ordinance will be produced at the hearing of this action * *.'

All parts of Paragraph 14 reading as follows: 'That by reason of the unlawful, wanton, wilful and gross negligent conduct of the defendant corporation and its agents and their failure to observe the rules and requirements of the National Electrical Code, and failure to observe the ordinance of the City of Lenoir, that this plaintiff is entitled to recover punitive damages of the defendant corporation in the amount of $50,000.00.'

In support of their motions to strike, the defendants make two contentions. One, the allegations of the Complaint are not sufficient for us to determine that the City of Lenoir has enacted an ordinance adopting the National Electrical Code of 1951 and making it a part of the law of the city. Two, the National Electrical Code of 1951 sets up a private standard of care, which has no relevancy to the legal standard of reasonable care imposed upon all persons by law, and the retention of the allegations of the Complaint in respect thereto will be highly prejudicial to them in the trial. The defendants in their brief state: 'We think the Town of Lenoir could have validly enacted an ordinance copying word for word the so-called National Electrical Code of 1951.'

The briefs of the parties make no reference to the North Carolina Building Code--enacted by the General Assembly in 1933, and, as subsequently amended, set forth in G.S., Chapter 143, Article 9, Sections 143-136 to 143-143, both inclusive, which chapter is entitled 'State Departments, Institutions, and Commissions.' G.S. § 143-137 states: 'It is the purpose of this article to protect life, health and property and all its provisions shall be construed liberally to that end. ' G.S. § 143-139 created a Building Code Council which was empowered and directed to draw up a building code for the State. In 1936 the Building Code Council adopted, promulgated and published a North Carolina Building Code. This Building Code is an important public document of which we take judicial notice. Staton v. Atlantic Coast Line R. Co., 144 N.C. 135, 56 S.E. 794; Clark v. City of Greenville, 221 N.C. 255, 20 S.E.2d 56; 20 Am.Jur., Evidence, Sec. 44.

Chapter XV, entitled 'Electrical Control' of the 1936 North Carolina Building Code, reads as follows:

'Except as may be otherwise provided by rules promulgated by the Building Code Council, the electrical systems of a building or structure shall be installed in conformity with the 'National Electrical Code,' as approved by the American Standards Association.

'The electric wiring of houses or buildings for lighting or for other purposes shall conform to the regulations prescribed by the organization known as National Board of Fire Underwriters.

'In order to protect the property of citizens from the dangers incident to defective electric wiring of buildings, it shall be unlawful for any firm or corporation to allow any electric current for the purpose of illuminating any building belonging to any person, firm, or corporation to be turned on without first having had an inspection made of the wiring by the building inspector and having received from the inspector a certificate approving the wiring of...