Penny v. Stone

• Decision Date: 10 December 1947
• Docket Number: 675
• Citation: 45 S.E.2d 362,228 N.C. 295
• Parties: PENNY v. STONE et al.
• Court: North Carolina Supreme Court

45 S.E.2d 362

228 N.C. 295

PENNY v. STONE et al.

No. 675

Supreme Court of North Carolina

December 10, 1947

Civil action to recover damages for wrongful death heard on motion to strike allegations in defendant's further answer.

Plaintiff's intestate was employed by the Lumberton Coach Company to operate a passenger bus. On the night of November 29, 1945 the bus operated by him and an oil tanker truck operated by defendant William Lockey, and belonging to defendant Stone were in collision on N. C. Highway 211. Plaintiff's intestate received injuries which caused his death. Many of the passengers on the bus were also killed or injured. Twenty-eight separate suits for damages were instituted. These actions were closed by compromise settlements, toward which settlements defendant made a substantial contribution.

The dependents of plaintiff's intestate have received an award under the Workmen's Compensation Act, and this cause was instituted pursuant to the provisions of G. S 97-10 for the joint benefit of plaintiff and the insurance carrier of the Lumberton Coach Company.

The appellant answered, pleading certain affirmative defenses. In his third (unnumbered) further defense he, in eight separate paragraphs, alleges in substance:

1. That an agreement had been entered into between the employer of deceased or its insurance carrier and the father of deceased for a division of the proceeds recovered in this action in a manner contrary to the provisions of G. S. 97-10 and contrary to public policy; that the action is not maintained in good faith but instead is prosecuted under said suprious agreement; and that plaintiff is estopped by law and good morals by 'said illegal agreement;'

2. The acceptance by the dependents of plaintiff's intestate of the award made by the Industrial Commission and the releases executed in connection therewith constitute a bar to this action;

3. That during the negotiations for the settlement of the 28 damage suits which grew out of the collision, counsel for the insurance carrier of the employer of plaintiff's intestate, in return for a large contribution from defendant toward the settlements, promised to advise their client not to institute this action and assured defendant their client, in their opinion, would follow their advice; and that therefore said insurance carrier and said attorneys are estopped from receiving any part of the recovery herein.

The plaintiff moved to strike all eight paragraphs constituting said further defense. The motion was allowed and defendant excepted and appealed.

James R. Nance, of Fayetteville, and Johnson & Johnson, of Lumberton, for plaintiff-appellee.

Oates, Quillin & McRae, of Fayetteville, and F. D. Hackett, of Lumberton, for defendant-appellant.

BARNHILL Justice.

An allegation in a pleading is irrelevant and immaterial whenever it is of such nature that evidence in support thereof would be incompetent at the hearing. Nothing ought to remain in a pleading, over objection, which is incompetent to be shown in evidence. Pemberton v. Greensboro, 203 N.C. 514, 166 S.E. 396; Duke v. Crippled Children's Commission, 214 N.C. 570, 199 S.E. 918. On a motion to strike, the test of relevancy of a pleading is the right of the pleader to present the facts to which the allegation...