Scott v. Bryan
| Decision Date | 14 October 1936 |
| Docket Number | 243. |
| Citation | 187 S.E. 756,210 N.C. 478 |
| Parties | SCOTT v. BRYAN. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wayne County; G. V. Cowper, Special Judge.
Action by W. L. Scott against Robert E. Bryan. From an order denying his motion to strike out certain portions of plaintiff's reply, the defendant appeals.
Affirmed.
In action against insured tort-feasor, presiding judge has duty to guard against prejudicial references to liability insurance.
Smith Leach & Anderson, of Raleigh, for appellant.
Kenneth C. Royall, of Raleigh, for appellee.
Plaintiff set out in his complaint a cause of action for negligence on the part of the defendant in the operation of a motor vehicle on the highway, whereby he alleged a serious personal injury was inflicted upon him.
The circumstances of the injury as stated in the complaint are substantially these: That on January 24, 1933, defendant was driving his truck northward along a highway two and a half miles south of Goldsboro, immediately preceding the oil truck of Thompson-Wooten Oil Company; that approaching plaintiff's filling station, situated on the west side of the highway, where plaintiff was standing, the defendant suddenly and without warning, turned to the left across the highway directly in front of the Thompson-Wooten Oil Company's truck, thereby causing the truck of the oil company to swerve to the left to avoid a collision, and to strike and injure the plaintiff to his damage in the alleged sum of $50,000.
Defendant filed answer in which he denied the allegations of the negligence on his part, and alleged that plaintiff's injury was due solely to the negligence of the oil company and he set up the additional defense that the plaintiff had made demand upon the oil company for compensation for his alleged injury and had effected a settlement and satisfaction for his damages in the sum of $6,500, and had in consideration thereof executed and delivered to said oil company a written release and discharge of said oil company from all liability to the plaintiff for the injuries received on this occasion, and the defendant pleaded such release from an alleged joint tort-feasor as a bar and defense to this action.
The plaintiff, replying to the defendant's plea that the plaintiff's release of the oil company, a joint tort-feasor, discharged the defendant, alleged that the settlement with and release of the oil company was brought about and induced by the fraud of the defendant, in that he falsely and fraudulently represented to the plaintiff that he (the defendant) was insolvent, and that he carried no liability insurance out of which any recovery could be collected, whereas in truth and in fact defendant did carry liability insurance in the sum of $10,000; that plaintiff regarded the negligence of the oil company, if any, as slight compared with that of the defendant; and that the amount received from the oil company was a comparatively small part of the damages recoverable for his injury.
The defendant moved that certain portions of the allegations of the reply, particularly those containing references to misrepresentation as to liability insurance, be stricken from said pleading on the ground that same were irrelevant and prejudicial. C.S. § 537.
The motions to strike these allegations from the reply were denied by the court below, and the correctness of this ruling is the single question presented by this appeal.
It is not controverted that under the pleadings, here, the defendant and the oil company were joint tort-feasors, and this invokes the application of the pertinent principle that the release of one of two joint tort-feasors discharges the other; the law allowing but one compensation for the injury. Howard v. Plumbing Co., 154 N.C. 224, 70 S.E. 285; Sircey v. Hans Rees' Sons, 155 N.C. 296, 71 S.E. 310; Braswell v. Morrow, 195 N.C. 127, 141 S.E. 489.
The defendant contends that plaintiff in his reply should not be permitted to repudiate the release and settlement alleged in the answer without asking for the rescission of the release or returning the consideration therefor, and that, at most, plaintiff is relegated to an action against the defendant for deceit. But plaintiff's allegations of defendant's misrepresentation inducing the settlement with the oil company are set up for another purpose. Plaintiff here invokes the principle of estoppel by misrepresentation. He alleges the defendant practiced a fraud upon him and by false representations induced him to change his position for the worse; that having a good cause of action against an insured and indemnified party, he was by that party's misrepresentation led to make a settlement for a comparatively small amount with another whose negligence was minor, thereby discharging the principal tort-feasor who was in position to compensate him in larger measure for his injury; and that in equity the defendant should now be estopped to set up the release and settlement as a defense to plaintiff's action.
The principle of estoppel by misrepresentation is stated by Walker, J., in Boddie v. Bond, 154 N.C. 359, 70 S.E 824,...
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