{ "id": 8621502, "name": "GEORGE R. MERCER v. RAY B. HILLIARD and MONTGOMERY WARD COMPANY, INC.", "name_abbreviation": "Mercer v. Hilliard", "decision_date": "1959-03-18", "docket_number": "", "first_page": "725", "last_page": "729", "citations": [ { "type": "official", "cite": "249 N.C. 725" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "70 S.E. 2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "235 N.C. 619", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626300 ], "opinion_index": 0, "case_paths": [ "/nc/235/0619-01" ] }, { "cite": "2 S.E. 2d 854", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "215 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631485 ], "opinion_index": 0, "case_paths": [ "/nc/215/0680-01" ] }, { "cite": "78 S.E. 2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "238 N.C. 552", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613540 ], "opinion_index": 0, "case_paths": [ "/nc/238/0552-01" ] }, { "cite": "242 N.C. 766", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "61 S.E. 377", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "147 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270355 ], "opinion_index": 0, "case_paths": [ "/nc/147/0537-01" ] }, { "cite": "95 S.E. 2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610042 ], "opinion_index": 0, "case_paths": [ "/nc/245/0281-01" ] }, { "cite": "6 S.E. 2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "217 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598139 ], "opinion_index": 0, "case_paths": [ "/nc/217/0047-01" ] }, { "cite": "83 S.E. 2d 908", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 N.C. 776", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611490 ], "opinion_index": 0, "case_paths": [ "/nc/240/0776-01" ] }, { "cite": "67 S.E. 2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "234 N.C. 536", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624399 ], "opinion_index": 0, "case_paths": [ "/nc/234/0536-01" ] }, { "cite": "106 S.E. 2d 560", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "249 N.C. 367", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615237 ], "opinion_index": 0, "case_paths": [ "/nc/249/0367-01" ] }, { "cite": "91 S.E. 2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 525", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626028 ], "opinion_index": 0, "case_paths": [ "/nc/243/0525-01" ] } ], "analysis": { "cardinality": 521, "char_count": 9844, "ocr_confidence": 0.428, "pagerank": { "raw": 2.550646383164499e-07, "percentile": 0.8143001773462468 }, "sha256": "cd1450782aabba0fbfe3f658d4e86f46416d4c8b1bfb5d08cf970e7d29afb210", "simhash": "1:a6bda769cc47ee46", "word_count": 1650 }, "last_updated": "2023-07-14T22:25:15.863799+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GEORGE R. MERCER v. RAY B. HILLIARD and MONTGOMERY WARD COMPANY, INC." ], "opinions": [ { "text": "Bobbitt, J.\nThe sole ground of .plaintiff's motion is that the facts alleged by defendants do not constitute a legal defense to plaintiff\u2019s action. In substance, if not in form, plaintiff\u2019\u00ae motion is a demurrer to defendants\u2019 \u201cFirst Further Answer and Defense,\u201d in its entirety, and will be so considered. Hayes v. Wilmington, 243 N.C. 525, 91 S.E. 2d 673; Etheridge v. Light Co., 249 N.C. 367, 106 S.E. 2d 560.\nG.S. 1-141, m pertinent part, provided: \u201cThe plaintiff may in all oases demur to an answer containing new matter, where upon its face, it does not constitute a . . . defense; and he may demur to one or more of .such defenses . . ., and reply to the residue.\u201d Williams v. Hospital Asso., 234 N.C. 536, 67 S.E. 2d 662; Jenkins v. Fields, 240 N.C. 776, 83 S.E. 2d 908.\n\u201cA plea in bar is one that denies the plaintiff\u2019s right to maintain the action, and which, if established, will destroy the action.\u201d McIntosh, N. O. Practice & Procedure, \u00a7 523; Brown v. Clement Co., 217 N.C. 47, 6 S.E. 2d 842; Solon Lodge v. Ionic Lodge, 245 N.C. 281, 95 S.E. 2d 921.\nAn order or judgment which sustains a demurrer to a plea in bar affects a substantial right and a defendant may appeal therefrom. G.S. 1-277; Shelby v. R. R., 147 N.C. 537, 61 S.E. 377. Rule 4(a), Rules of Practice in the Supreme Count, 242 N.C. 766, when otherwise applicable, limits the right of immediate appeal only in instances where the demurrer is overruled.\nThe facts alleged by defendants do not constitute either an adjudication or -an acknowledgment that negligence on the part of Mrs. Mercer proximately caused the collision between the Mercer and Hil-liard cars. Dixie Lines v. Grannick, 238 N.C. 552, 78 S.E. 2d 410.\nThe factual situation here illustrates the soundness of the reasons stated by Ervin, J., in support of the decision in Dixie Lines v. Grannick, supra. Mrs. Strickland\u2019s action in Wake Superior Court involved a small property claim. The Mercers were residents of Wilson County. Independent of questions relating to legal liability, the inconvenience .and the expense of fighting the Strickland case would seem 'Sufficient practical ground to induce the Mercers to effect a compromise settlement of Mrs. Strickland\u2019s claim. Moreover, if plaintiff preferred, by effecting a compromise settlement thereof, to eliminate Mrs. Strickland\u2019s small property damage claim, so that the respective rights of the Mercers and of defendants inter se would be adjudicated in the separate action then pending between them rather than as a .subordinate feature of the Strickland case, they were at liberty to do so.\nDefendants undertake to distinguish Dixie Lines v. Grannick, supra, on tiie ground ifcbaifc no court \u00abaction or judgment was involved therein. This factual distinction is \u00abimmaterial. In both \u00aboases \u00abthere was \u00aban out of \u00abcourt compromise \u00absettlement. Having received the compromise consideration, \u00aband \u00abhaving executed \u00aba full release, Mrs. Strickland was thereby precluded from prosecuting her action. The judgment of voluntary nonsuit was only \u00aban incident in the consummation of the out \u00abof court compromise settlement.\nIt is noteworthy \u00abthat the compromise settlement was between Mrs. Strickland \u00aband tire Mercers. Defendants do not \u00aballege that \u00abthey or either \u00abof them participated therein in \u00abany way. If it .absolved defendants from liability to Mrs. Strickland, to this extent defendants have reason to be well \u00abpleased.\nDefendants contend, citing Steele v. Beaty, 215 N.C. 680, 2 S.E. 2d 854, that the judgment was \u00aba retraxit rather \u00abthan \u00aba \u00absimple judgment of voluntary nonsuit. In either event, it was not a judicial determination or adj'udieation \u00abof liability -on \u00abthe \u00abpart \u00abof the Mercers. If a retraxit, its legal effect was \u00abto estop Mrs. Strickland from instituting another \u00absuit \u00abon the same cause of \u00abaction.\nThe factual \u00absituations in Coach Co. v. Stone, 235 N.C. 619, 70 S.E. 2d 673, \u00aband in the \u00abcases \u00abcited therein, \u00abare \u00abstated and distinguished by Ervin, J., in Dixie Dines v. Grannick, supra. Suffice to say, Dixie Lines v. Grannick, supra, o\u00abn which the present decision is based, is expressly approved.\nAffirmed.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Gardner, Connor & Lee for plaintiff, appellee.", "Dupree & Weaver and Lucas, Rand & Rose for defendants, appellants." ], "corrections": "", "head_matter": "GEORGE R. MERCER v. RAY B. HILLIARD and MONTGOMERY WARD COMPANY, INC.\n(Filed 18 March, 1959.)\n1. Pleadings \u00a7\u00a7 20, SI\u2014\nA motion by plaintiff to strike the entire further answer and defense of defendant on the ground that 'the facts alleged therein do not constitute a legal defense, is, in effect, a demurrer to such further answer . and defense.\n2. Appeal and Error \u00a7 3\u2014\nAn order 'allowing plaintiff\u2019s motion to strike a further answer and defense in its entirety on the ground that it does not constitute a bar or defense to plaintiff\u2019s action, is, like an order which sustains a demurrer to a plea in bar, appealable as affecting a substantial right. Buie of Practice in the 'Supreme Oourt N-o. 4(a).\n3. Compromise and Settlement: Judgments \u00a7\u00a7 33b, 33c\u2014 Consent judgment or judgment in retraxit pursuant to compromise with owner of parked car does not bar action by owner of car directly involved in the collision against the driver of the other car.\nOne of the ears involved in a collision struck a parked car as a result. In .the action by the owner of the parked car, alleging negligence on the pant of both drivers, a voluntary nonsuit was entered, with the consent of the owner of the parked car, pursuant to a compromise agreement reached between the owner of the parked car and the owner of one of the cars involved in the collision. In this action by the owner procuring the compromise agreement theretofore instituted against the driver of .the other car and his employer, the judgment entered pursuant to the compromise was set up iu the further answer and defense as a bar. Held: The further answer and defense was properly stricken on motion, since the judgment pursuant to the compromise could not bar plaintiff\u2019s action, even though it be considered a judgment in retrawH .which would bar the owner of the parked car from again prosecuting her claim.\nAppeal by defend\u00edante from Morris, J., December Civil Term, 1958, of WILSON.\nCivil .action instituted August 21, 1958, .heard below on plaintiff\u2019s motion to strike defendants\u2019 \u201cFirst Further Answer and Defense.\u201d\nThe background facte are these:\nPlaintiff\u2019s action is to recover for damage to Ms automobile allegedly caused by the negligence of defendants. Defendants, in a joint answer, denied negligence and pleaded contributory negligence; and Hilliard, the individual defendant, alleged a \u2018Counterclaim for damages for .personal injuries and for damage to his automobile.\nThe controversy grows out of a 'Collision between plaintiff\u2019s oar \u25a0and Hilliard\u2019s car on July 23, 1958, at a street intersection in Raleigh, N. C. Plaintiff\u2019s car, operated by his wife, was going west on New Bern Avenue. Billiard was operating his car north .on Person Street.\nHilliard was on business for the corporate defendant. Defendants alleged that, under the family purpose doctrine, .plaintiff was legally responsible for 'tire manner in which his wife operated his car.\nPlaintiff alleged that .the collision was caused 'by the negligent conduct of Hilliard. Defendants alleged that the collision was caused by the negligent conduct of Mrs. Sadie Lamm Mercer, plaintiff\u2019s wife.\nIn their \u201cFirst Further Answer and Defense,\u201d a separate and distinct part of said joint answer, defend\u00edante alleged as tes judicata and as a bar to plaintiff\u2019s right ito maintain this action the facts summarized below.\nAfter the present action was instituted, to wit, on .or about September 4, 1958, Mrs. Margaret Strickland instituted a separate action in the Superior Court of Wake County against Mrs. Sadie Lamm Mercer, George Mercer and Ray Benton Hilliard. In her .complaint therein, Mrs. Strickland alleged that, after the collision between the Mercer and Hilliard cars, tihe Mercer car, 'Struck her car, then properly parked on the north 'side of New Bern Avenue; -and, alleging that the damage to her car was caused by the negligence of the three defendants, she asserted her right to recover from them the sum of $250.00.\nNo pleading was filed by -any defendant in the Strickland case.\nOn or -about September 16, 1958, in consideration of their payment to her of $165.00, Mrs. Strickland executed a release and thereby discharged the Mercers from liability -on account of the damage done to her car. On September 17, 1958, a judgment was entered by the assistant clerk of superior 'court, which, after reciting that the plaintiff bad elected to take a voluntary nonsuit, provided: \u201cIT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the plaintiff be and she is hereby nonsuited and that she pay the cost of this action.\u201d This judgment bears the written consent of Mrs. Strickland \u25a0and of her attorney.\nDefendants alleged that the release executed by Mrs. Strickland and the said judgment were parts of the same transaction, namely, a transaction wherein \u201crepresentatives of the said Mrs. Margaret Strickland and the plaintiff George H. Mercer and Sadie Lamm Mercer entered into a compromise settlement of said action.\u201d\nPlaintiff\u2019s motion to strike in its entirety defendants\u2019 \u201cFirst Further Answer and Defense,\u201d is based on these grounds:\n\u201c1. The allegations of said First Further Answer- and Defense do not constitute res judicata of any of the issues involved in this action.\n\u201c2. The allegations of .said First Further Answer and Defense are irrelevant, immaterial and prejudicial, and have no substantial relation to the controversy between the parties to this action, and present no legal defense to the plaintiff\u2019s cause of action.\u201d\nAfter hearing, Judge Morris entered an order allowing plaintiff\u2019s said motion; and defendants excepted and appealed.\nGardner, Connor & Lee for plaintiff, appellee.\nDupree & Weaver and Lucas, Rand & Rose for defendants, appellants." }, "file_name": "0725-01", "first_page_order": 767, "last_page_order": 771 }