Sanders v. Chavis
| Decision Date | 13 January 1956 |
| Docket Number | No. 593,593 |
| Citation | 90 S.E.2d 749,243 N.C. 380 |
| Parties | A. V. SANDERS, Administrator of the Estate of James Leverne Sanders, Deceased v. Alford CHAVIS. |
| Court | North Carolina Supreme Court |
McLean & Stacy, Lumberton, for defendant, appellant.
Coble Funderburk, Monroe, for plaintiff, appellee.
The defendant excepts to the failure of the court below to find certain facts in accord with his prayer therefor, and also excepts to the second, third, fifth, eighth, ninth, tenth and eleventh findings of fact as set out hereinabove. He further excepts to the first conclusion of law, the denial of the motion to set aside the judgment entered at the November Term 1954 of the Superior Court of Hoke County, and to the judgment entered pursuant to the findings of the court and its conclusion of law.
The primary question presented for determination on this appeal is simply this: Is there any competent evidence to support the court's finding that the neglect on the part of the defendant in failing to defend this action was inexcusable?
Certainly some of the findings with respect to insurance coverage on the car involved in the accident on 23rd December, 1953, and certain conferences between a representative of the insurance company and the attorney for the plaintiff are not germane to the question before us. This is particularly true with respect to any conferences between an agent of the insurance company and the plaintiff's attorney. The insurance company is not a party to this action. Hence, finding of fact No. 5 will be set aside since it does not have any bearing on the conduct of this defendant with respect to his failure to defend the action. The defendant's conduct must be judged by what he did and not what someone, not a party to the action, did. Earle v. Earle, 198 N.C. 411, 151 S.E. 884.
The defendant introduced in his behalf an affidavit signed by an assistant claim manager of The Travelers Indemnity Company to the effect that such company, because of the assigned risk, issued its policy of indemnity insurance covering an automobile owned by the defendant, Alford Chavis; that the automobile insured in the name of the defendant by his company was wrecked and that the affiant is advised that James Leverne Sanders was killed as a result of said wreck; that The Travelers Indemnity Company had no knowledge of the institution of this action and no opportunity to defend its insured, Alford Chavis.
Conceding all this to be true, there is nothing in this affidavit that tends to justify the defendant's failure to defend the action or to notify his insurer to do so. Neither do we construe the finding based on this affidavit to be prejudicial to the defendant.
The defendant, in support of his motion, submitted an affidavit in which, among other things, he said:
A. V. Sanders submitted an affidavit in which he said: 'That he is the Administrator of the Estate of James Leverne Sanders; that on or about the 17th day of August 1954, after the Sheriff had served the summons and a copy of the summons, together with a copy of the complaint, upon the defendant, the defendant asked the affiant about the papers; that affiant told him that affiant was the one bringing the action, and therefore could not advise him as to what to do, but told the defendant to see his insurance agent who would...
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State v. Grundler
...surprise or excusable neglect, G.S. § 1-220, are conclusive on appeal when supported by any competent evidence. Sanders v. Chavis, 243 N.C. 380, 385, 90 S.E.2d 749; Perkins v. Sykes, 233 N.C. 147, 151, 63 S.E.2d 133; Van Hanford v. McSwain, 230 N.C. 229, 233, 53 S.E.2d 84; Craver v. Spaugh,......
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Strickland v. Hughes, 437
...for fraud, collusion, excusable neglect, or other cause recognized by law as sufficient. Jones v. Insurance Co., supra; Sanders v. Chavis, 243 N.C. 380, 90 S.E.2d 749. Furthermore, when the insurer is later sued by the injured person, if the insurer had a right to defend the action against ......
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Highfill v. Williamson
...would be entirely irrelevant, and there was no need to advise Judge Gambill and Judge Johnston pertaining thereto. Sanders v. Chavis, 243 N.C. 380, 90 S.E.2d 749 (1956); Swain v. Insurance Co., 253 N.C. 120, 116 S.E.2d 482 There was no conclusion of law No. 7, and the next conclusion of law......
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Jones v. State Farm Mut. Auto. Ins. Co., 293
...constituted a final adjudication and determination of Brown's legal liability to plaintiff. In this connection, see Sanders v. Chavis, 243 N.C. 380, 90 S.E.2d 749; also, Sanders v. Travelers Indemnity Company, 144 F.Supp. 742 (M.D.N.C.). The record discloses no ground on which defendant can......