{ "id": 8551218, "name": "BERNADINE WILES, d/b/a CENTERVIEW TAXI v. RALPH P. MULLINAX, JR., and MULLINAX INSURANCE AGENCY, INC.", "name_abbreviation": "Wiles v. Mullinax", "decision_date": "1969-02-26", "docket_number": "No. 6919SC13", "first_page": "73", "last_page": "77", "citations": [ { "type": "official", "cite": "4 N.C. App. 73" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "155 S.E. 2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "270 N.C. 661", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570018 ], "opinion_index": -1, "case_paths": [ "/nc/270/0661-01" ] }, { "cite": "148 S.E. 2d 229", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "267 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559432 ], "opinion_index": -1, "case_paths": [ "/nc/267/0392-01" ] }, { "cite": "113 S.E. 2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "252 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622380 ], "opinion_index": 0, "case_paths": [ "/nc/252/0380-01" ] }, { "cite": "164 S.E. 345", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "202 N.C. 779", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628826 ], "opinion_index": 0, "case_paths": [ "/nc/202/0779-01" ] }, { "cite": "98 S.E. 2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 322", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626166 ], "opinion_index": 0, "case_paths": [ "/nc/246/0322-01" ] }, { "cite": "2 S.E. 2d 17", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "215 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629922 ], "opinion_index": 0, "case_paths": [ "/nc/215/0402-01" ] }, { "cite": "72 S.E. 2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623212 ], "opinion_index": 0, "case_paths": [ "/nc/236/0166-01" ] }, { "cite": "112 S.E. 2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "251 N.C. 849", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627718 ], "opinion_index": 0, "case_paths": [ "/nc/251/0849-01" ] }, { "cite": "155 S.E. 2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "270 N.C. 661", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570018 ], "opinion_index": 0, "case_paths": [ "/nc/270/0661-01" ] } ], "analysis": { "cardinality": 504, "char_count": 11458, "ocr_confidence": 0.587, "pagerank": { "raw": 5.4250333130079806e-08, "percentile": 0.3418496599608703 }, "sha256": "431e3807ded609aaaac7823c024f8ee790e7fcf911526827db0c09f098d752ed", "simhash": "1:930e226b4ea4774b", "word_count": 1847 }, "last_updated": "2023-07-14T18:50:38.610889+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MallaRD, C.J., and PARKER, J., concur." ], "parties": [ "BERNADINE WILES, d/b/a CENTERVIEW TAXI v. RALPH P. MULLINAX, JR., and MULLINAX INSURANCE AGENCY, INC." ], "opinions": [ { "text": "Britt, J.\n(1) Defendants assign as error the trial court\u2019s allowing plaintiff to introduce paragraphs 1, 2, 3, 4, 7 and 11 of defendants\u2019 fourth further answer and defense. These paragraphs are summarized as follows: Defendants are informed and believe that after claim was made against plaintiff by Estelle Tucker (widow of the deceased employee) a hearing was set before the North Carolina Industrial Commission at Concord, N. C. Plaintiff herein, as the employer of Murray Lee Tucker, appeared at said meeting, presided over by Deputy Commissioner Shuford, on 3 December 1959. Royal Indemnity Company and Dixie Fire and Casualty Company appeared before the commissioner on said, date as the carriers for the employer. Royal and Dixie each denied that they were the insurance carriers for plaintiff, who appeared before the Industrial Commission without legal counsel or advice. Defendants are informed and believe that the Industrial Commission dismissed Royal Indemnity Company and Dixie Fire and Casualty Company as defendants in the matter pending before the Industrial Commission; that plaintiff thereafter communicated with Royal and Dixie and said companies denied plaintiff\u2019s claim, but plaintiff has never attempted to recover at law from either of said companies.\nIt is well settled that admissions of specific facts in the answer may be introduced into evidence, though it is not necessary to do so. The opposing party may then qualify or explain the admission. Chavis v. Insurance Co., 251 N.C. 849, 112 S.E. 2d 574; Winslow v. Jordan, 236 N.C. 166, 72 S.E. 2d 228; Stansbury, N. C. Evidence 2d, \u00a7 177; 3 Strong, N. C. Index 2d, Evidence, \u00a7 23, p. 634. In Chavis v. Insurance Co., supra, in an opinion by Higgins, J., it is said: \u201cThe assignments of error based on the introduction of parts of defendant\u2019s answer are without merit. The parts of the answer offered were of distinct and separate facts pertinent to the issues. They were competent as judicial admissions as well as admissions against interest. (Citations including Winslow v. Jordan, Supra.)\u201d\nWe hold that the court did not err in permitting plaintiff to introduce the above-mentioned portions of defendants\u2019 answer, and the assignment of error pertaining thereto is overruled.\n(2) Defendants assign as error the court\u2019s allowing plaintiff to introduce in evidence the opinion and award of the Industrial Commission rendered in the proceeding referred to above.\nAlthough the individual defendant testified as a witness in the hearing before the Industrial Commission, neither of defendants was a party to the proceeding. The opinion and award of the Industrial Commission was not res judicata as to the defendants herein. Wiles v. Mullinax, 270 N.C. 661, 155 S.E. 2d 246. Except where the principle of res judicata is involved, the judgment or finding of a court, or the decision of an administrative officer or tribunal, cannot be used in another case as evidence of the facts found. Stansbury, N. C. Evidence 2d, \u00a7 143; Warren v. Insurance Co., 215 N.C. 402, 2 S.E. 2d 17. We think the trial court erred in permitting plaintiff to introduce the opinion and award of the Industrial Commission in evidence. We must now determine if the error was prejudicial to defendants.\nThe reception of incompetent evidence to prove an admitted fact is not cause for disturbing the result of a trial. In Re Will of Crawford, 246 N.C. 322, 98 S.E. 2d 29; Rudd v. Casualty Co., 202 N.C. 779, 164 S.E. 345. The admission of testimony over defendants' objection as to a particular fact cannot be prejudicial where defendants allege the identical matter- in their answer. Ray v. Membership Corp., 252 N.C. 380, 113 S.E. 2d 806. The admission of incompetent evidence is cured where the fact sought to be established is alleged in appellant\u2019s pleading, or the substance of the incompetent testimony is abundantly established by competent evidence. 1 Strong, N. C. Index 2d, Appeal and Error, \u00a7 48, pp. 196, 197.\nBut, the findings of fact and conclusions of law contained in the opinion and award of the Industrial Commission went far beyond the admissions in defendants\u2019 answer. We quote two examples:\n\u201c* * * (On) 29 November 1958, the defendant employer had no workmen\u2019s compensation insurance with defendant insurance carriers.\n* * #\nThe defendant insurance carriers had no workmen\u2019s compensation insurance policy in force for the protection of defendant employer at the time of the injury by accident giving rise hereto. Defendant employer was a non-insurer at such time.\u201d\nWe hold that the error was prejudicial to defendants, entitling them to a new trial. The assignment of error is sustained.\n(3) Defendants also assign as error a portion of the trial judge\u2019s charge placing the burden of proof on defendants to establish an insurance binder which they introduced in evidence.\nThe second issue submitted to the jury was as follows: \u201cDid the defendants negligently fail to procure such workmen\u2019s compensation insurance coverage, as alleged in the complaint?\u201d After stating this issue, the trial judge properly instructed the jury that the burden of proof on the issue was on the plaintiff. As evidence that they did not fail to procure coverage for plaintiff, defendants introduced what they contended was a binder which bound the Dixie Insurance Company to provide coverage for plaintiff. This evidence was vital to defendants and in referring to it the trial judge stated in his charge: \u201c* * * And, if you find from the evidence and by its greater weight the supporting evidence concerning the binder, the date which it was mailed to the Dixie Insurance Company, the receipt thereby, the contract between the Dixie Insurance Company and the defendants, if you find the supporting evidence to be true, the same is sufficient for you to find that there was a valid binder issued by the Dixie Insurance Company.\u201d A little later in his charge, in referring to the binders, the trial judge stated: \u201c* * * [T]he defendant argues and contends that you should find from the evidence and by its greater weight * *\nIt is true that the burden of proving an affirmative defense is on the defendant, and ordinarily such defense must be proved by the greater weight of the evidence. 3 . Strong, N. C. Index 2d, Evidence, \u00a7 9, pp. 606, 607. But, the binders alleged and introduced in evidence by defendants did not constitute an affirmative defense; they were evidence in defense of plaintiff\u2019s claim that defendants negligently failed to procure workmen\u2019s compensation insurance coverage for plaintiff.\nThe assignment of error is well taken and the error was prejudicial to defendants.\nWe refrain from discussing the other assignments of error brought forward and argued in defendants\u2019 brief, as the questions raised probably will not arise upon a retrial of this action.\nWe realize that the cause of action alleged in this case has existed for more than ten years, that there have been three trials in the superior court and three appeals to the Appellate Division. Nevertheless, all parties are entitled to a trial free from prejudicial error and for the prejudicial errors discussed above, defendants are entitled to a\nNew trial.\nMallaRD, C.J., and PARKER, J., concur.", "type": "majority", "author": "Britt, J." } ], "attorneys": [ "Williams, Willeford & Boger by Brice J. WiUeford, Jr., for plaintiff appellee.", "Hartsell, Hartsell & Mills by William L. Mills, Jr., and K. Michael Koontz for defendant appellants." ], "corrections": "", "head_matter": "BERNADINE WILES, d/b/a CENTERVIEW TAXI v. RALPH P. MULLINAX, JR., and MULLINAX INSURANCE AGENCY, INC.\nNo. 6919SC13\n(Filed 26 February 1969)\n1. Evidence \u00a7 23; Insurance \u00a7 2\u2014 admission of allegations in answer\nIn an action for damages by reason of tbe alleged negligent failure of defendant insurance agents to procure for plaintiff workmen\u2019s compensation insurance coverage and their negligent failure to notify plaintiff that they had not done so, the court properly allowed plaintiff to introduce portions of defendants\u2019 further answer and defense to the effect that two insurance companies had been dismissed as defendants in a workmen\u2019s compensation proceeding before the Industrial Commission on the ground that they were not insurance carriers for this plaintiff, the parts of the further answer admitted being distinct and separate facts pertinent to the issues and competent as judicial admissions as well as admissions against interest.\n2. Evidence \u00a7 23\u2014 allegations in pleadings \u2014 competency\nAdmissions of specific facts in the answer may be introduced into evidence, and the opposing party may then qualify or explain the admission.\n3. Judgments \u00a7 36\u2014 parties concluded\nOpinion and award of the Industrial Commission is not res judicata as to defendants in this action who were not parties to the proceeding before the Industrial Commission, although one of the defendants was a witness in that proceeding.\n4. Evidence \u00a7 22\u2014 judgment in former trial or proceeding\nExcept where the principle of res judicata is involved, the judgment or finding of a court or the decision of an administrative officer or tribunal cannot be used in another case as evidence of the facts found.\n5. Appeal and Error \u00a7 48\u2014 admission of . evidence \u2014 error cured by pleading\nThe admission of incompetent evidence is cured when the fact sought to be established is alleged in appellant\u2019s pleading.\n6. Evidence \u00a7 22; Insurance \u00a7 2\u2014 admission of Industrial Commission judgment\nIn an action for damages by reason of the alleged negligent failure of defendant insurance agents to procure for plaintiff workmen\u2019s compensation insurance coverage and their negligent failure to notify plaintiff that they had not done so, the court committed prejudicial error in admitting into evidence an opinion and award of the Industrial Commission in which it was found that plaintiff had no workmen\u2019s compensation insurance coverage on the date in question, where defendants were not parties to the proceeding before the Industrial Commission.\n7. Trial \u00a7 35; Insurance \u00a7 2\u2014 agent\u2019s failure to procure insurance \u2014 binders \u2014 burden of proof\nIn an action for damages by reason of the alleged negligent failure of defendant insurance agents to procure for plaintiff workmen\u2019s compensation insurance, it was prejudicial error for tlie court to place the burden of proof on defendants to establish an insurance binder introduced by defendants which allegedly bound an insurance company to provide coverage for plaintiff, the binder not constituting an affirmative defense but being evidence to refute plaintiff\u2019s claim that defendants negligently failed to procure the insurance coverage.\nAppeal by defendants from Seay, J., at the 3 June 1968 Session of CabaRrus Superior Court.\nPlaintiff filed her complaint on 10 April 1961 alleging the negligent failure of the defendants to procure workmen\u2019s compensation insurance for her or to notify plaintiff of cancellation of her coverage, resulting in the liability of the plaintiff for an injury occurring on 29 November 1958.\nIn their answer, defendants contended that plaintiff had coverage on 29 November 1958 and that they were not negligent.\nThis is the third appeal of this case from the superior court. A sufficient statement of the facts may be found in the opinions in Wiles v. Mullinax, appearing in 267 N.C. 392, 148 S.E. 2d 229, and 270 N.C. 661, 155 S.E. 2d 246.\nIn the third trial in superior court, the jury answered the issues submitted in favor of plaintiff, and from judgment on the verdict defendants appealed, assigning error.\nWilliams, Willeford & Boger by Brice J. WiUeford, Jr., for plaintiff appellee.\nHartsell, Hartsell & Mills by William L. Mills, Jr., and K. Michael Koontz for defendant appellants." }, "file_name": "0073-01", "first_page_order": 93, "last_page_order": 97 }