Parrish v. Atlantic Coast Line R. Co.

• Decision Date: 20 May 1942
• Docket Number: 89.
• Citation: Parrish v. Atlantic Coast Line R. Co., 221 N.C. 292, 20 S.E.2d 299 (N.C. 1942)
• Parties: PARRISH v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

20 S.E.2d 299

221 N.C. 292

PARRISH v. ATLANTIC COAST LINE R. CO.

No. 89.

Supreme Court of North Carolina

May 20, 1942

[Copyrighted Material Omitted]

This action was brought to recover damages for personal injuries sustained by plaintiff in a crossing collision in the city of Rocky Mount between an automobile operated by him and a train operated by defendant.

The defendant, before filing answer or demurrer or obtaining an extension of time to plead, moved to strike certain paragraphs of the complaint as being "irrelevant redundant and impertinent," specifically relying on C.S § 537.

The matter objectionable to the defendant was as follows:

(1) In support of his allegation of negligence in the maintenance and care of the crossing the plaintiff alleged (a) that there were three sets of tracks at this crossing, (b) that the crossing was "maintained with rough boards, large cinders or burnt coal, clinkers and dirt, and the railroad bed, beyond the end of the said boards *** constructed and maintained of large cinders or burnt coal clinkers and coarse gravel and dirt and projecting railroad cross-ties", (c) that the view of the tracks was obstructed by a three-foot dirt bank, on which were a wire fence, several buildings, warehouses, etc., and a spur track occupied by twelve or fifteen freight cars, all of which made this a blind crossing, and (d) that the freight cars on the spur track were moved the day following the accident, this removal showing knowledge and an admission by the defendant of its negligence in thus obstructing the view at the crossing.

(2) In support of his allegation of negligence in the operation of the train involved in the collision, the plaintiff alleged (a) that certain of the employees who were operating the train were discharged, suspended, or reduced in rank following the accident, and (b) that the defendant permitted plaintiff to lie on its roadbed, unconscious, for nearly an hour, "although it had a locomotive and train upon which plaintiff could have been removed to a hospital maintained by defendant in the City of Rocky Mount."

The court struck the allegation as to the three sets of tracks, but denied the motion as to the remainder of the matter objected to.

From the order denying its motion to strike the above-described paragraphs, the defendant excepted and appealed.

F. S. Spruill, of Rocky Mount (Thos. W. Davis, of Wilmington, of counsel), for defendant-appellant.

L. L. Davenport, of Nashville, and T. T. Thorne, of Rocky Mount, for plaintiff-appellee.

SEAWELL Justice.

The plaintiff contends that it would be improper for the court to consider the relevancy of his allegations on the defendant's motion to strike, but that this can and should be postponed until plaintiff introduces evidence and defendant objects thereto.This position questions the propriety of the court's considering the merits of defendant's appeal, which is to challenge the timeliness and propriety of the appeal itself.Certainly, if the appeal is not premature or unavailable, it must be decided here on its merits.

At the threshold of investigation we are met by C.S. § 638, which sets forth the orders and judgments from which an appeal will lie: "An appeal may be taken from every judicial order or determination of a judge of a superior court, upon or involving a matter of law or legal inference, whether made in or out of term, which affects a substantial right claimed in any action or proceeding; or which in effect determines the action, and prevents a judgment from which an appeal might be taken; or discontinues the action, or grants or refuses a new trial."Obviously, the only apparent basis on which the defendant could appeal here, if it can appeal at all, is that the order denying its motion to strike"affects a substantial right" which it claims in the action.Ordinarily, it is only under such circumstances that an appeal will lie from an order other than a final judgment.Martin v. Flippin,101 N.C. 452, 8 S.E. 345;Skinner v. Carter,108 N.C. 106, 12 S.E. 908;Warren v. Stancill,117 N.C. 112, 23 S.E. 216;Graded School Trustees v. Hinton,156 N.C. 586, 71 S.E. 1087.

But whether a substantial right of the appellant has been affected by the order in this case--whether he has been prejudiced sufficiently to warrant this court in considering the merits of his appeal, Pemberton v. Greensboro,205 N.C. 599, 172 S.E. 196--need not be considered now; for it has been held that when the motion on which the order is based is made as a matter of right and is not addressed to the court's discretion, upon its denial the movant may appeal immediately to the Supreme Court and have his motion decided there on its merits.Tar Heel Hosiery Mill v. Durham Hosiery Mills,198 N.C. 596, 152 S.E. 794;Poovey v. Hickory,210 N.C. 630, 188 S.E. 78.It may be that the rationale of this rule is that a substantial right is affected by the denial of a motion addressed to the right of the question rather than to the court's discretion.However this may be, the right to appeal immediately in such case seems to be firmly established.Ellis v. Ellis,198 N.C. 767, 153 S.E. 449;First Carolina's Joint Stock Land Bank v. Stewart,208 N.C. 139, 179 S.E. 463;Scott v. Bryan,210 N.C. 478, 187 S.E. 756(case decided on its merits);Virginia Trust Co. v. Dunlop,214 N.C. 196, 198 S.E. 645;Duke v. Crippled Children's Comm.,214 N.C. 570, 199 S.E. 918;Herndon v. Massey,217 N.C. 610, 8 S.E. 2d 914.

The defendant's motion to strike in the instant case was specifically based on C.S. § 537, which provides that "If irrelevant or redundant matter is inserted in a pleading, it may be stricken out on motion of any person aggrieved thereby, but this motion must be made before answer or demurrer, or before an extension of time to plead is granted. ***" A motion made under this statute and within its time limits is not addressed to the discretion of the court, but, as the statute indicates, is made as a matter of right.Tar Heel Hosiery Mill v. Durham Hosiery Mills, supra;Federal Reserve Bank v. Atmore,200 N.C. 437, 157 S.E. 129;Poovey v. Hickory, supra;Patterson v. Southern R. R.,214 N.C. 38, 198 S.E. 364;Herndon v. Massey, supra.If the motion is made after answer or demurrer, or after an extension of time to plead is granted, then it becomes a matter of the court's discretion, and appeal can only be had from the final judgment and upon exception duly taken.Best v. Clyde,86 N.C. 4;Tar Heel Hosiery Mill v. Durham Hosiery Mills, supra;Life Insurance Co. v. Smathers,211 N.C. 373, 190 S.E. 484;City of Fayetteville v. Spur Distributing Co.,216 N.C. 596, 5 S.E.2d 838.The defendant's motion, however, having been made in due time, according to the statute, was made as a matter of right, is therefore immediately appealable, and may and should be decided on its merits here.If any irrelevant or redundant matter appears in the allegations objected to, it should be stricken.

The relevancy of an allegation, like the relevancy of evidence, depends upon the purpose which the particular legal instrument is intended to fulfill.The purpose of an allegation in a complaint, broadly speaking, is to state a fact which, when considered with other facts, will constitute a cause of action.The purpose of evidence is to prove competent allegations.The relevancy of either depends upon its tendency to fulfill its purpose.The rules concerning the relevancy of evidence, although helpful in analogy, have no bearing on the relevancy of the allegations, for, strictly speaking, it is by the competent allegations that the relevancy of the evidence is to be judged--whether the evidence tends to prove facts properly alleged as a cause of action in the complaint.This makes the relevancy of the allegations the subject of independent inquiry, divorced, except by analogy, from the rules concerning the relevancy of evidence.

Looking at its purpose, an allegation is relevant which tends, as an element thereof, to express the cause of action on which relief is sought.(This seems to be the gist or common meeting ground of the numerous tests laid down by this court.)Tar Heel Hosiery Mill v. Durham Hosiery Mills, supra;Ellis v. Ellis, supra;Revis v. Asheville,207 N.C. 237, 176 S.E. 738;First Carolina Joint Stock Land Bank v. Stewart, supra.(Some decisions merely use the analogy to rules of evidence, and determine relevancy by the competency of showing the matter in evidence.)Pemberton v. Greensboro,203 N.C. 514, 166 S.E. 396;Patterson v. Southern R. R., supra;Virginia Trust Co. v. Dunlop, supra;Duke v. Crippled Children's Comm., supra.Thus, in the instant case, even though the questioned allegations standing alone would be insufficient to set up negligence, or are not coupled with other allegations which would make up a cause of action, if they do amount to an element of the cause of action, they would be revelant, and should not be stricken--at least for irrelevancy.In applying such a test it is, of course, necessary to consider what elements go to make up a cause of action, but the inquiry is not one of the sufficiency of the complaint as a whole to state a cause of action.Poovey v. Hickory, supra.This question can only be raised by demurrer.C.S. § 511, subd. 6.The motion to strike does not raise it, and, as a practical matter, such a motion would not be made if there were no statement of a cause of action.Nevertheless, if the particular allegation of negligence, as appearing upon the face of the pleading, cannot have any proximate relation to the injury complained of, it should be stricken as irrelevant.

Redundancy in pleading does not present quite the theoretical and technical problems posed by the subject of relevancy.It would seem to include...