Vernon v. Crist

• Decision Date: 31 January 1977
• Docket Number: No. 40,40
• Citation: 231 S.E.2d 591,291 N.C. 646
• Parties: Ricky Martin VERNON v. Garry Randall CRIST.
• Court: North Carolina Supreme Court

Page 591

231 S.E.2d 591

291 N.C. 646

Ricky Martin VERNON v. Garry Randall CRIST.

No. 40.

Supreme Court of North Carolina.

Jan. 31, 1977.

White & Crumpler by Michael J. Lewis, Winston-Salem, for plaintiff-appellee.

Hudson, Petree, Stockton, Stockton & Robinson by R. M. Stockton, Jr., James H. Kelly, Jr., and W. Thompson Comerford, Jr., Winston-Salem, for defendant-appellant.

COPELAND, Justice.

This appeal presents several issues for our determination all related to the question of whether the trial court should have allowed the issue of last clear chance to be submitted to the jury.

Prior to the effective date of the Rules of Civil Procedure, 1 January 1970, our Court had repeatedly said that in order to submit an issue of last clear chance there must be both Allegata and Probata. Exum v. Boyles, 272 N.C. 567, 158 S.E.2d 845 (1968); Wooten v. Cagle, 268 N.C. 366, 150 S.E.2d 738 (1966); Phillips v. R.R., 257 N.C. 239, 125 S.E.2d 603 (1962); Gunter v. Winders, 256 N.C. 263, 123 S.E.2d 475 (1962); Collas v. Regan, 240 N.C. 472, 82 S.E.2d 215 (1954); Wagoner v. R.R., 238 N.C. 162, 77 S.E.2d 701 (1953); Bailey v. R.R. and King v. R.R., 223 N.C. 244, 25 S.E.2d 833 (1943); Hudson v. R.R., 190 N.C. 116, 129 S.E. 146 (1925). Whether a pleading is necessary under the new rules for the issue to be submitted has not been analyzed.

Last clear chance is a plea in avoidance to the affirmative defense of contributory negligence and thus logically is pleaded in a reply to an answer alleging contributory negligence. Exum v. Boyles, supra. The better pleading practice dictates that a plaintiff should not anticipate a defense and undertake to avoid it in his complaint. See Exum, supra. When a reply is not a required pleading, as it appears at first glance is true under G.S. 1A--1, Rule 7(a), the question arises as to whether the avoidance must be pleaded in order to present proof at trial and to have the issue decided by the jury.

The North Carolina Rules of Civil Procedure are in most instances verbatim copies of the Federal Rules of Civil Procedure, Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970), and originally, Rule 7(a), outlining the permissible and required pleadings, was no exception. The rule required a reply only to a 'counterclaim denominated as such' and provided that, in other cases, a reply was not allowed except that a court could, in its discretion, order a reply. G.S. 1A--1, Rule 7(a) (1969), as amended, (Cum.Supp.1975).

The better reasoned Federal cases and leading commentators construing Federal Rules 7(a) and 8(d) (also enacted in North Carolina verbatim) concluded that where a reply was not required, the allegations of the answer were deemed denied or avoided and thus a plaintiff could meet the allegations at trial in any manner that would have been proper had a reply been allowed. Crain v. Blue Grass Stockyards Co., 399 F.2d 868 (6th Cir. 1968); Neeff v. Emery Transp. Co., 284 F.2d 432 (2d Cir. 1960); Traylor v. Black, Sivalls & Bryson, Inc., 189 F.2d 213 (8th Cir. 1951); Cowling v. Deep Vein Coal Co., 183 F.2d 652 (7th Cir. 1950); First Presbyterian Church of Santa Barbara, Cal. v. Rabbitt, 118 F.2d 732 (9th Cir. 1940); 2A Moore's Federal Practice § 8.29 (2d ed. 1975); 5 Wright & Miller, Federal Practice and Procedure § 1279 (1969). A recent case on point held that a plaintiff was not required to plead last clear chance under the Federal Rules of Civil Procedure in order to take advantage of the doctrine. Kline v. McCorkle, 330 F.Supp. 1089 (E.D.Va.1971) (Hoffman, C.J.).

Nevertheless, even after the effective date of the new civil procedure rules in North Carolina, plaintiffs continued to petition trial judges for permission to file a reply alleging last clear chance. See Explanation of General Statutes Commission of Senate Bill 569 as Amended by House Judiciary 11 (1971 Sess.) (hereinafter cited as Explanation of S.B. 569). These plaintiffs apparently relied on the older North Carolina cases which required, albeit arguably in dicta, the doctrine to be pleaded in order for the issue to be submitted to the jury. Exum, supra; Wooten, supra; Phillips, supra; Gunter, supra; Collas, supra; Wagoner, supra; Bailey, supra; Hudson, supra. Those earlier cases had failed to mention two code pleading provisions almost identical in language to Rule 7(a) and Rule 8(d) which ostensibly would have allowed proof of last clear chance and submission of the issue to the jury without the filing of a responsive pleading. G.S. 1--141, --159 (repealed effective 1 January 1970); See Barnhardt v. Smith, 86 N.C. 473 (1882).

The inconvenience of having to secure permission from the court to file under the new rules what was perceived to be a necessary pleading, led the General Statutes Commission to recommend an amendment to Rule 7(a) to allow plaintiffs to file a reply alleging last clear chance. See Explanation of S.B. 569, supra. Rule 7(a) now provides in relevant part:

'There shall be a complaint and an answer, a reply to a counterclaim denominated as such . . .. If the answer alleges contributory negligence, a party May serve a reply alleging last clear chance. No other pleading shall be allowed except that the court may order a reply to an answer . . .' (emphasis added.) G.S. 1A--1, Rule 7(a) (Cum.Supp.1975), amending, (1969).

The words 'may serve a reply' in Rule 7(a) could be misleading if a plaintiff construed the 'may' as permissive and the failure to file a reply as not foreclosing any rights. When Rule 7(a) as amended is read in conjunction with Rule 8(d), it is evident that some pleading alleging last clear chance is necessary if a plaintiff seeks to prove the avoidance at trial because Rule 8(d) only deems affirmative defenses appearing in the answer as denied or avoided if a responsive pleading is neither required or Permitted.

Plaintiff in this case opted not to file a reply. While the recommended pleading practice is for the plaintiff to file a reply alleging last clear chance, it is not the exclusive pleading alternative. In Exum v. Boyles, supra, 272 N.C. at 579, 158 S.E.2d at 855, Justice Lake speaking for our Court said:

'It would be exceedingly technical to hold that, though the complaint . . . alleged facts giving rise to the doctrine of the last clear chance, the plaintiff may not receive the benefit of the doctrine . . . merely because . . . facts were alleged in the complaint rather than in a reply.'

Examining plaintiff's complaint, we do not find the words 'last clear chance.' This omission, however, is not fatal. 'While the plaintiff must plead the facts making the doctrine applicable in order to rely upon it, it is not required that he plead the doctrine by its generally accepted name.' Exum v. Boyles, supra at 578, 158 S.E.2d at 854. The complaint does reveal the following allegations:

'3. That at all times herein complained of the defendant was negligent in the following manner, among others:

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'c. That although he had ample opportunity to do so and although he saw, or in the exercise of reasonable diligence should have seen, that the plaintiff was standing and leaning against the rear of the automobile, that it was necessary for him to take action to avoid injuring the plaintiff, nevertheless took no action whatsoever to avoid injuring the plaintiff.

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'i. That the defendant was standing in close proximity to the plaintiff and saw, or should have seen, that the plaintiff was in a position where he could not properly protect himself but nevertheless proceeded to get into the car without any warning whatsoever to the plaintiff and started the car forward causing the plaintiff to fall and injure himself as set out herein.

'4. That the negligence of the defendant as herein alleged in starting the automobile forward without warning the plaintiff was the sole and only proximate cause of the accident complained of and injury to the plaintiff.'

Rule 8(b) provides that '(a) party shall state in short and plain terms his defenses to each claim asserted.' This language is nearly identical to the language of Rule 8(a) governing the pleading of a claim for relief. Rule 8(e) (1) which states that no technical forms of pleading are required and Rule 8(f) which requires pleadings to be construed so as to do substantial justice apply with equal force to statements of claims and defenses. The requirements for pleading a defense are no more stringent than the requirements for pleading a claim for relief. Bell v. Insurance Co., 16 N.C.App. 591, 192 S.E.2d 711 (1972).

In Sutton v. Duke, supra, 277 N.C. at 104, 176 S.E.2d at 167, this Court, speaking through Justice Sharp (now Chief Justice), said:

'A pleading complies with the rule if it gives sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand the nature of it and the basis for it, to file a responsive pleading, and--by using the rules provided for obtaining pretrial discovery--to get any additional information he may need to prepare for trial.' Accord Rose v. Motor Sales, 288 N.C. 53, 215 S.E.2d 573 (1975).

Although plaintiff's complaint was less than artfully drawn and, as admitted by counsel, no model pleading, we believe it met the minimum requirements of notice pleading. The complaint alleges that the plaintiff was in a position that he could not properly protect himself; that the defendant either saw or in the exercise of reasonable care should have seen that it was necessary for him to take action to avoid injuring the plaintiff; that the defendant had ample opportunity to act to avoid injury to the plaintiff; that defendant was negligent in failing to act, specifically in failing to warn the plaintiff before moving the car forward, and that defendant's negligence was the proximate cause of the accident. If an element of last clear chance was lacking, it was the allegation that plaintiff's own negligence created his perilous position. That element...