Pinnix v. Toomey
| Decision Date | 30 June 1955 |
| Docket Number | No. 531,531 |
| Citation | 87 S.E.2d 893,242 N.C. 358 |
| Court | North Carolina Supreme Court |
| Parties | Robert H. PINNIX v. T. C. TOOMEY and Frank Toomey, partners, doing business as Toomey Bros. Plumbing & Heating Company. |
L. B. Hollowell, Mullen, Holland & Cooke, Gastonia, and Jones & Small, Charlotte, for plaintiff.
Helms & Mulliss, Charlotte, Garland & Garland, Gastonia, and John D. Hicks, Charlotte, for defendants.
The plaintiff's appeal challenges the rulings of the court below in striking from the complaint allegations which incorporate and refer to specific portions of the contract between the defendants and the Board of Education of Mecklenburg County.
The plaintiff's cause of action sounds in tort. He seeks to recover damages for the alleged actionable negligence of the defendants. Nevertheless, he contends that the pleaded sections of the contract embrace ultimate facts, relevant and pertinent to the statement of his cause of action, as tending to show the relationship of the parties and the nature and extent of the legal duties which he alleges the defendants breached. On the other hand, the defendants, pointing to the fact that the theory of the plaintiff's cause of action as declared on is in tort, and not ex contractu, insist that the stricken portions of the complaint were properly eliminated on the ground of irrlevancy.
In resolving the contentions so made by the parties, these principles of substantive and procedural law come into focus:
Actionable negligence presupposes the existence of a legal relationship between parties by which the injured party is owed a duty by the other, and such duty must be imposed by law. Council v. Dickerson's, Inc., 233 N.C. 472, 64 S.E.2d 551; Prosser on Torts, 1941 Hornbook, Sec. 33. The duty may arise specifically by mandate of statute, or it may arise generally by operation of law under application of the basic rule of the common law which imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to endanger the person or property of others. 65 C.J.S., Negligence § 4, p. 339 et seq. This rule of the common law arises out of the concept that every person is under the general duty to so act, or to use that which he controls, as not to injure another. Such duty of care may be a specific duty owing to the plaintiff by the defendant, or it may be a general one owed by the defendant to the public, of which the plaintiff is a part. Moreover, while this duty of care, as an essential element of actionable negligence, arises by operation of law, it may and frequently does arise out of a contractual relationship, the theory being that accompanying every contract is a common-law duty to perform with ordinary care the thing agreed to be done, and that a negligent performance constitutes a tort as well as a breach of contract. 38 Am.Jur., Negligence, Sec. 20. But it must be kept in mind that the contract creates only the relation out of which arises the common-law duty to exercise ordinary care. Thus in legal contemplation the contract merely creates the state of things which furnishes the occasion of the tort. J. M. Pace Mule Co. v. Seaboard Airline R. R., 160 N.C. 215, 76 S.E. 513. This being so, the existence of a contract is ordinarily a relevant factor, competent to be alleged and proved in a negligence action to the extent of showing the relationship of the parties and the nature and extent of the commonlaw duty on which the tort is based. Necessarily, then, it is proper for the complaining party to allege facts from which it can be said as a matter of law that the defending party owed to him a legal duty arising out of a contractual relationship. See Truelove v. Durham & Southern R. R., 222 N.C. 704, 24 S.E.2d 537; Shives v. Sample, 238 N.C. 724, 79 S.E.2d 193. However, it suffices to state in a plain and concise manner the ultimate facts from which the law will imply such duty. 38 Am.Jur., Negligence, Sec. 259. And the complaint should not contain collateral, irrelevant, redundant, or evidentiary matters in respect to the relationship of the parties and the legal duty or duties upon which the plaintiff grounds his cause of action. G.S. § 1-153; Barron v. Cain, 216 N.C. 282, 4 S.E.2d 618; Chason v. Marley, 223 N.C. 738, 28 S.E.2d 223; Guy v. Baer, 234 N.C. 276, 67 S.E.2d 47. Furthermore, where the injured party elects to sue in tort rather than in contract, he must accept the standard of care prescribed by the common law as the test of determining actionable negligence, i. e., that degree of care which an ordinarily prudent person would have exercised under the same or similar circumstances. Watkins v. Taylor Furnishing Co., 224 N.C. 674, 31 S.E.2d 917; Rea v. Simowitz, 225 N.C. 575, 35 S.E.2d 871, 162 A.L.R. 999. Therefore, any contract provision prescribing a different standard of care from that imposed by rule of the common law is not relevant to the issue of actionable negligence and should be stricken on motion. See Council v. Dickerson's, Inc., supra.
Our examination of the complaint in the light of the controlling principles of law leaves the impression that the plaintiff has failed to show prejudicial error in respect to any of the stricken portions of the complaint.
No part of Paragraph 4 was stricken. The allegations of this paragraph suffice to show the legal relationship between the parties, i. e., that in the erection of the school building the plaintiff was the general contractor and the defendants the plumbing contractors, and that each was operating under a separate written contract with the Board of Education of Mecklenburg County. The unstricken portions of the complaint contain allegations of ultimate facts adequate to show all the essentials of actionable negligence, namely: (1) the existence of legal duties on the part of the defendants to protect the plaintiff from the injuries of which he complains, (2) failure on the part of the defendants to exercise ordinary care in the performance of these duties, and (3) damage to the plaintiff proximately resulting from such negligent performance of duty.
Our analysis of the stricken portions of the complaint, with reasons for sustaining the rulings of the trial court, are stated in summary below.
Paragraph 5.--Here the plaintiff alleges that the contracts made by the Board of Education of Mecklenburg County with the plaintiff and with the defendants contain a common set of general conditions, and two of these conditions, namely, sections 48(a) and 51(a), are pleaded verbatim.
Section 48(a) of the contract provides in gist that all contractors shall cooperate and coordinate their work with each other so as to facilitate the general progress of the work. However, nowhere in the complaint is it alleged by proper averment of facts, as distinguished from mere conclusions of the pleader, that the defendants were negligent in the performance of any legal duty with respect to coordinating their work with that of the plaintiff. Hence Section 48(a) of the contract was properly stricken for irrelevancy.
Section 51(a) incorporates by reference 44 Articles of the Standard Form of Contract of the American Institute of Architects. Of these 44 Articles, only two are set out in the record on appeal. As to the 42 Articles not shown in the record, error in respect to their elimination has not been made to appear. It would seem to be elemental that the action of the trial court in striking out a portion of a pleading may not be held prejudicial on appeal unless the appellant shows what the stricken portion contained.
Paragraph 6.--Here the plaintiff sets out verbatim Articles 34 and 35 of the Standard Form of Contract of the American Institute of Architects.
Article 34 provides that in case one contractor causes damage to another contractor, settlement may be made 'by agreement or arbitration.' This Article also contains a stipulation for the protection of the owner by way of subrogation over against any contractor who may cause another contractor damage. The arbitration agreement is completely foreign to the theory of the defendants' liability as alleged in the complaint. Also, since the Board of Education is not a party to the action, the subrogation agreement for its protection is completely foreign to plaintiff's cause of action as declared on in the complaint.
Article 35 is in three parts: (1) It stipulates that each contractor in coordinating his work with other contractors shall afford them reasonable opportunity for the storage of their materials. Plaintiff nowhere in the complaint alleges negligence in respect to failure to furnish storage space. Hence the contractual stipulation as to storage space is foreign to the issue. (2) Next, this Article stipulates in gist that where one contractor's work depends for execution or results on the work of another contractor, the former shall inspect the work of the latter and report any defective work to the architect, and failure to so inspect and report shall constitute an acceptance on the part of the dependent contractor, 'except as to defects which may develop in the other contractor's work after the execution of his work. ' The provisions of this part of the contract are not only anticipatory of the defendant's defense but are calculated to substitute a contractual standard of care for the established rule of the ordinarily prudent man as the test in determining the question of negligence. No such substitution is permissible in a negligence action. Council v. Dickerson's, Inc., supra, 233 N.C. 472, 64 S.E.2d 551. See also 12 Am.Jur., Contracts, Sec. 458, p. 1042; 38 Am.Jur., Negligence, Sec. 20. (3) The third phase of Article 35 has to do with the procedure to be followed by a contractor in clearing progress measurements and discrepancies with the architect. All this is entirely foreign to the plaintiff's cause of action as alleged. It...
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