Steele v. Moore-Flesher Hauling Co.

• Decision Date: 20 November 1963
• Docket Number: MOORE-FLESHER,No. 240,240
• Citation: 133 S.E.2d 197,260 N.C. 486
• Parties: Charles F. STEELE v.HAULING COMPANY, a corporation, W. Floyd Cochran, trading and doing business under the name and style of W. Floyd Cochran Steel Erection and Rigging Company, William Jaecklein, and William H. Wendell.
• Court: North Carolina Supreme Court

Page 197

133 S.E.2d 197

260 N.C. 486

Charles F. STEELE v. MOORE-FLESHER HAULING COMPANY, a corporation, W. Floyd Cochran, trading and doing business under the name and style of W. Floyd Cochran Steel Erection and Rigging Company William Jaecklein, and William H. Wendell.

No. 240

Supreme Court of North Carolina.

Nov. 20, 1963

Bailey & Booe, Charlotte, for plaintiff, appellee.

Boyle, Alexander & Wade, Charlotte, for defendant W. Floyd Cochran, trading and doing business under name and style of W. Floyd Cochran Steel Erection and Rigging Co., appellee.

Pierce, Wardlow, Knox & Caudle, Charlotte, for defendant William H. Wendell, appellee.

Kennedy, Covington, Lobdell & Hickman, Charlotte, for defendant Moore-Flesher Hauling Co., appellant.

MOORE, Justice.

This action was instituted by plaintiff to recover damages for injury to his person caused by the alleged negligence of defendants.

The complaint alleges in substance the following facts:

On 1 June 1960 Moore-Flesher Hauling Company, a corporation (Moore-Flesher), and W. Floyd Cochran, trading as W. Floyd Cochran Steel Erection and Rigging Company (Cochran), among others, were engaged in constructing a building in a real estate development in Charlotte, North Carolina, known as Arrowood. Plaintiff, an employee of B. F. Todd, trading as B. F. Todd Electrical Contractor, was at work on said date installing electrical conduit pipe in the building. He was working inside the building at a point about 20 feet above the ground, standing on a steel girder. On this steel girder, and on another steel girder parallel to, and about 40 feet from, the one on which plaintiff was standing, were tracks upon which a 5-ton crane was operated for the purpose of moving heavy equipment in the bay below. Plaintiff's work required him to be on the girder and track at the time of his injury. William A. Pulley, the crane operator, pursuant to the instructions and directions of defendants William Jaecklein and William H. Wendell, who assisted him and directed the course, direction and movement of the crane, placed the crane in operation. The crane approached plaintiff from his rear and its wheels ran over his feet, crushing them, and inflicted upon plaintiff serious and permanent injuries. Plaintiff was injured by reason of the active negligence (specifically set out) of Pulley, Jaecklein and Wendell, all of whom were employees of both Moore-Flesher and Cochran, and at the time of plaintiff's injury were acting within the scope and course of their employments and in furtherance thereof. Moore-Flesher and Cochran are liable to plaintiff under the doctrine of respondeat superior, and Jaecklein and Wendell are liable to plaintiff because of their active concurrent negligence.

Defendants filed answers denying plaintiff's allegations of negligence and setting up affirmative defenses.

Moore-Flesher filed an amendment to its answer and set up therein two crossactions, stating: (1) That Pulley and Wendell were not its employees and any negligence of Pulley and Wendell is not imputable to it, that Cochran had entered into a contract with Moore-Flesher by the terms of which Cochran agreed to indemnify and save harmless Moore-Flesher against loss by reason of injuries to other persons caused by the negligent acts or omissions of Pulley and Wendell by providing public liability insurance to the extent of $10,000 for injuries sustained by one person in an accident, and that Cochran is liable over to Moore-Flesher up to $10,000 if plaintiff recovers against the latter by reason of any negligence on the part of Pulley and Wendell, and if any part of the judgment up to $10,000 is not discharged by liability insurance; (2) that any negligence of Wendell is not imputable to Moore-Flesher under the doctrine of respondeat superior, but, if it should be determined to the contrary, Wendell would be primarily liable and Moore-Flesher would be only secondarily liable and the latter would be entitled to recover judgment in this action over against Wendell for any amount which plaintiff recovers of Moore-Flesher by reason of the negligent acts or omissions of Wendell.

Plaintiff, Cochran and Wendell moved to strike Moore-Flesher's entire amendment to its answer, that is, the two cross-actions. The court allowed the motions and struck the amendment, both cross-actions. Moore-Flesher appeals.

(1). The court ruled correctly in striking the cross-action against Cochran. In an action against two defendants to recover for negligent injury, a cross-action against one defendant by the other may not be maintained when the cross-action is based on an express contract between the defendants obligating the one to indemnify the other from losses resulting from the activities of indemnitor in performing or supervising the work out of which plaintiff's injuries arose. The indemnity contract concerns the defendants only. 'Plaintiff is not privy thereto. Therefore, it is not germane to plaintiff's cause of action, and the determination of the rights and liabilities of the defendants with respect to this agreement of indemnity is not necessary to a conclusion of plaintiff's cause of action. Only matters relevant to the original or primary action in which all parties have a community of interest may be litigated.' Greene v. Charlotte Chemical Laboratories, Inc., 254 N.C. 680, 688, 120 S.E.2d 82, 87, and cases therein cited and discussed. In the instant case, as in Greene, the cross-action recites a provision of the indemnity contract requiring the maintenance of liability insurance and specifying the limits thereof. Evidence of such insurance would be incompetent upon trial, and disclosure of policy limits to the jury might be extremely prejudicial to plaintiff where he has suffered serious injury. '* * * (I)n an action by an injured party against insured all references to such (liability) insurance is prejudicial, and all such references should be stricken from the pleadings.' Greene v. Charlotte Chemical Laboratories, Inc., supra, 254 N.C. at page 687, 120...