{ "id": 8560512, "name": "RANDOLPH J. JEWELL and ELEANOR K. JEWELL, Plaintiffs v. E. JACK PRICE, Defendant", "name_abbreviation": "Jewell v. Price", "decision_date": "1963-05-01", "docket_number": "", "first_page": "345", "last_page": "350", "citations": [ { "type": "official", "cite": "259 N.C. 345" } ], "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": "67 S.E. 2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "234 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621784 ], "opinion_index": 0, "case_paths": [ "/nc/234/0309-01" ] }, { "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": "176 S.E. 265", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "207 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622995 ], "opinion_index": 0, "case_paths": [ "/nc/207/0122-01" ] }, { "cite": "98 S.E. 2d 852", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627116 ], "pin_cites": [ { "page": "488-9" } ], "opinion_index": 0, "case_paths": [ "/nc/246/0481-01" ] }, { "cite": "125 S.E. 2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "256 N.C. 721", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574855 ], "opinion_index": 0, "case_paths": [ "/nc/256/0721-01" ] }, { "cite": "122 S.E. 2d 366", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "255 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571019 ], "pin_cites": [ { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/nc/255/0537-01" ] }, { "cite": "72 S.E. 2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623114 ], "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0157-01" ] }, { "cite": "62 A.L.R. 2d 806", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "92 S.E. 2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 23", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219545 ], "pin_cites": [ { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0023-01" ] }, { "cite": "87 S.E. 2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612654 ], "opinion_index": 0, "case_paths": [ "/nc/242/0234-01" ] }, { "cite": "78 S.E. 2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "238 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615754 ], "pin_cites": [ { "page": "664" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0662-01" ] }, { "cite": "107 S.E. 2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "249 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621502 ], "opinion_index": 0, "case_paths": [ "/nc/249/0725-01" ] }, { "cite": "127 S.E. 2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "257 N.C. 754", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570998 ], "opinion_index": 0, "case_paths": [ "/nc/257/0754-01" ] }, { "cite": "130 S.E. 2d 49", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "259 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "pin_cites": [ { "page": "87" } ], "opinion_index": 0 }, { "cite": "254 N.C. 783", "category": "reporters:state", "reporter": "N.C.", "pin_cites": [ { "page": "785" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 643, "char_count": 14311, "ocr_confidence": 0.507, "pagerank": { "raw": 1.852430938965816e-07, "percentile": 0.7237101468077869 }, "sha256": "8517043400fcec9afe5a3e6d667b164e54b3a549e03da4c7e76de255585e3565", "simhash": "1:bde535c0c8d87982", "word_count": 2395 }, "last_updated": "2023-07-14T17:55:17.750134+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RANDOLPH J. JEWELL and ELEANOR K. JEWELL, Plaintiffs v. E. JACK PRICE, Defendant." ], "opinions": [ { "text": "Bobbitt, J.\nPlaintiffs\u2019 motion to strike is addressed to each further answer and defense in its entirety and in substance, if not in .form, is a demurrer to each further answer and defense. The court, in allowing plaintiffs\u2019 motion to strike, in effect sustained a demurrer to each of defendant\u2019s further defenses. Hence, Rule 4(a); Rules of Practice in the Supreme Court, 254 N.C. 783, 785, does not apply. Jenkins & Co. v. Lewis, 259 N.C. 85, 87, 130 S.E. 2d 49; Williams v. Hunter, 257 N.C. 754, 127 S.E. 2d 546; Mercer v. Hilliard, 249 N.C. 725, 107 S.E. 2d 554, and eases cited.\n\u201cA demurrer or motion to strike admits, for the purpose of the hearing thereon, the truth of the allegations so challenged. When the demurrer or motion is, as here, directed to the sufficiency of a pleaded defense, the one question presented to the judge for decision is as to whether the facts alleged constitute a valid defense, in whole or in part, to plaintiff\u2019s cause of action. The judge is not permitted to hear evidence or find facts dehors the record. He must accept the facts as -alleged and bottom his answer thereon.\u201d Barnhill, J. (later C.J.), in Stone v. Coach Co., 238 N.C. 662, 664, 78 S.E. 2d 605; Dunn v. Dunn, 242 N.C. 234, 87 S.E. 2d 308; Hinson v. Dawson, 244 N.C. 23, 26, 92 S.E. 2d 393, 62 A.L.R. 2d 806.\nIn the first further answer and defense defendant alleged inter alia that Lumbermens Mutual Casualty Company, plaintiffs\u2019 insurer, \u201cpaid to the plaintiffs for damage to the house -and damage to the contents and for living expenses sums equivalent to all tire losses which the plaintiffs sustained in the fire,\u201d and that the Casualty Company, not plaintiffs, is \u201cthe real party in interest.\u201d G.S. 1-57.\nWhere insured property is destroyed or damaged by the tortious act of -a third party, and the insurance company pays its insured, the owner, the full amount of his loss, the insurance company is sub-rogated to the owner\u2019s (indivisible) -cause of action against such third party. In such event, the insurance company is \u201cthe real party in interest\u201d (G.S. 1-57) and must sue in its own name to enforce -its right of subrogation against the tort-feasor. Burgess v. Trevathan, 236 N.C. 157, 160, 72 S.E. 2d 231; Herring v. Jackson, 255 N.C. 537, 543, 122 S.E. 2d 366; Insurance Co., v. Trucking Co., 256 N.C. 721, 125 S.E. 2d 25.\nPlaintiffs, in their motion to strike, assert that \u201cLumbermens Mutual Casualty Company is not the real party in interest,\u201d that \u201cthe payments by said company to the plaintiffs . . . covered only a portion of the plaintiffs\u2019 loss,\u201d and that defendant did not allege facts but conclusions.\nDefendant\u2019s allegation that the Casualty Company paid plaintiffs the full amount of their loss is an allegation of fact and may not be challenged by demurrer. As to a \u201cspeaking demurrer,\u201d see Construction Co. v. Electrical Workers Union, 246 N.C. 481, 488-9, 98 S.E. 2d 852, and cases -cited. Moreover, if and when defendant\u2019s said factual allegation is properly traversed, the factual issue so raised, absent waiver, is for determination by a jury. G.S. 1-172; Hershey Corp. v. R.R., 207 N.C. 122, 176 S.E. 265; Dixie Lines v. Grannick, 238 N.C. 552, 78 S.E. 2d 410.\nFor .the reasons stated the portion of Judge McConnelPs order allowing plaintiffs\u2019 motion to strike in its entirety defendant\u2019s first further answer and defense and paragraph 1 of his prayer for relief is reversed.\nWith reference to the second further answer and defense, defendant had ia clear sight i\u00bb allege itfa,t he had built plaintiffs\u2019 house or caused it to be built according to plans and specifications established by plaintiffs and that plaintiffs had accepted the completed job prior to the fire. Hence, the portion of Judge McConnell\u2019s order allowing plaintiffs\u2019 motion to strike in it\u00e1 entirety defendant\u2019s second further answer and defense and paragraphs 2 and 3 of his prayer for relief, is reversed.\nWhether particular allegations of either or both of defendant\u2019s further answers and defenses should be stricken is not before us. A motion to strike under G.S. 1-153 should be directed to specific allegations. Miller v. Bank, 234 N.C. 309, 67 S.E. 2d 362. Plaintiffs have not made such a motion. Suffice to say, each further answer and defense contains sufficient factual allegations \u201cof . . . new matter constituting a defense\u201d (G.S. 1-135(2) ) to withstand plaintiffs\u2019 motion that it be stricken in its entirety.\nNo question is presented as to the rights and liabilities of defendant and the Garmons inter se. The record contains no cross complaint by defendant against the Garmons. Nor does it show service of process on the Garmons.\nAs to matters dehors the record, albeit discussed freely in the briefs, we refrain from comment.\nReversed.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Howard B. Arbuckle, Jr., and Carswell & Justice for plaintiff ap-pellees.", "Helms, Mulliss, McMillan & Johnston for defendant appellant." ], "corrections": "", "head_matter": "RANDOLPH J. JEWELL and ELEANOR K. JEWELL, Plaintiffs v. E. JACK PRICE, Defendant.\n(Filed 1 May 1963.)\n1. Appeal and Error \u00a7 3\u2014\nAn order allowing motion to strike paragraphs of the answer is immediately appealable when the paragraphs in question set forth complete and independent defenses so 'that the order amounts to sustaining demurrer to the defenses. Rule of Practice in the Supreme Court No. 4(a).\n2. Pleadings \u00a7\u00a7 15, 34\u2014\nA demurrer or motion to strike a defense presents the legal question of the sufficiency of the facts alleged to constitute a defense, and since the demurrer or motion admits for its purposes the truth of the facts alleged, the court must decide the question without hearing evidence or finding facts dehors the record.\n3. Insurance \u00a7 86; Parties \u00a7 2\u2014\nAllegations that an insurer had paid plaintiff the entire loss sued for constitute a complete defense to plaintiff\u2019s right to maintain the action, G-.S. 1-57, and plaintiff\u2019s assertion that payments made by insurer covered only a portion of the loss raises an issue of fact but cannot entitle plaintiff to have defendant\u2019s defense striken from the answer.\n4. Contracts \u00a7 23.1; Pleadings \u00a7 34\u2014 Construction of Rouse in accordance with specifications is defense to action for negligent construction.\nIn an action by the owners 'to recover of the contractor damages from a fire resulting from the alleged negligence of the contractor in the installation of the furnace in the house, the contractor, is entitled to- allege that he built or caused the house to be built in accordance with plans and specifications established by plaintiffs and that plaintiffs had accepted the completed job prior to the fire, and therefore plaintiff\u2019s motion to strike such defense in its entirety should have been denied. Whether particular allegations should have been striken is not presented in the absence of motions under GLS. 1-153 directed to- -the particular allegations.\nAppeal by defendant from McConnell, Special Judge, August 27, 1962, Special Civil \u201cA\u201d Term of MeCKLENbuhg.\nThe bearing below was on plaintiffs\u2019 motion to strike the further defenses alleged in defendant\u2019s answer.\nPlaintiffs instituted this action January 12, 1962, to recover damages of $48,851.88 on account of the destruction of their house and personal property by fire on January 18, 1959.\nUnder date of April 18, 1958, plaintiff Randolph J. Jewell and defendant entered into a contract whereby defendant, for the sum of $24,100.00, agreed to construct a house for plaintiffs. Section 23 of the plans -and specifications attached to and made a part of said contract provided for the installation in said house \u201cof a forced warm air York-PIeat oil burning furnace Model No. LB5-150.\u201d\nPlaintiffs alleged the fire and their loss were proximately caused by the negligence of defendant in failing, in particulars set forth, to install said furnace in accordance with contract and legal requirements.\nDefendant, answering, denied all allegations of negligence. By way of further answer and in bar of plaintiffs\u2019 right to recover defendant alleged two further defenses, viz..:\n\u201cAND FOR FURTHER ANSWER AND DEFENSE, AND IN BAR OF ANY RECOVERY HEREIN, the defendant alleges that at the time of the fire referred to in the complaint the plaintiffs had fire and personal property and other property insurance coverages with Lumbermens Mutual Casualty Company, an insurance corporation organized, existing and doing business under the laws of North Carolina; that after the fire the plaintiffs made claim against Lumbermens for their various losses, including all the losses referred to in the complaint, and that thereafter Lumbermens Mutual paid to the plaintiffs for damage to the house and damage to the contents and for living expenses sums equivalent to all the losses which the plaintiffs sustained in the fire, and that the said Lumbermens Mutual Casualty Company is therefore the real party in interest in this case and is a necessary party for the complete and proper determination of the controversy, and that without the presence of Lumbermens Mutual Casualty Company as a party, the suit cannot be properly completed; that the plaintiffs have heretofore testified under oath that they do not know anything about 'how the fire started and have never personally made any investigation about how the fire started and that they have filed proofs of loss with Lumbermens Mutual Casualty Company covering the items allegedly lost in the fire and the alleged damage to the house; that this suit was not started until January 12, 1962, which lacked only six days of being three years after the time of the fire; that the suit was instituted by attorneys for the insurance company; that they are in fact in actual as well as theoretical control of the litigation; and that the suit ought to be in the name of Lumbermens Mutual Casualty Company so that proper discovery of the actual losses can be had and so that the distribution of the recovery, if any, can be properly made and so that the requirements of the statute that actions be prosecuted in the name of the real party in interest can be complied with.\n\u201cAND FOR A SECOND FURTHER ANSWER AND DEFENSE, AND IN BAR OF ANY RECOVERY HEREIN, Hue defendant Price alleges that this defendant built or caused the house to be built according to plans and specifications established by the owners, the plaintiffs herein; that the defendant Price obtained the services of Roy S. Garmon and Garmon Roofing and Heating Company, the additional defendants herein, to install the furnace according to the plans and specifications; that as far as the defendant Price knew the defendants Garmon were competent and qualified to do the j ob they undertook to do; that the whole job was completed and turned over to the owners two months or so before the fire; that the contract of this defendant was fully completed and accepted by the owners before the alleged casualty occurred, and that if there was any fault in the construction of the building or the installation of the furnace, which is denied, it was the fault and responsibility of the defendants Garmon or the supplier of some part or parts of the specified furnace and its related installation, and not of the defendant Price, and that the completion of the work and the intervening contract work of the defendants Garmon and the aforesaid matters and things are specially pleaded in bar of any recovery herein.\u201d\nThereupon, plaintiffs filed a motion dated May 10, 1962, to strike from defendant\u2019s answer the following:\n\u201c1. All of the first FURTHER ANSWER AND DEFENSE and paragraph 1 in prayer for relief for that Lumbermens Mutual Casualty Company is not the real party in interest and is not a necessary party, the payments by said company to the plaintiffs having covered only a portion of the plaintiffs\u2019 loss, and for that the allegations aforesaid contain no allegations of fact but are conclusions of the defendant, E. Jack Price, and are irrelevant, immaterial and improper.\n\u201c2. All of the SECOND FURTHER ANSWER AND DEFENSE and paragraphs 2 and 3 in the prayer for relief for that the plaintiffs have elected to pursue this action against the defendant, E. Jack Price, with whom they contracted, in order to recover damages for an alleged breach of their contract, and plaintiffs should be permitted to do so without 'having contested litigation between the defendant, E. Jack Price, and his subcontractor proj ected into this action, and further for that the allegations aforesaid contain no allegations of fact but are conclusions of the defendant, E. Jack Price, and are irrelevant, immaterial and improper.\u201d\nPlaintiffs attached to said motion an affidavit of T. M. Mayfield dated May 10, 1962, stating that, as president of T. M. Mayfield & Company, he personally investigated and adjusted the loss of plaintiffs arising out of the fire on January 18, 1959; that the sum of $37,495.92 was paid by Lumbermens Mutual Casualty Company to plaintiffs; that plaintiffs executed a loan receipt in that amount on January 24, 1959; and that the aforesaid payment was insufficient to compensate plaintiffs in full for their loss and, due to- the insufficiency of their insurance coverage, represented only a part of their loss.\nOn June 27, 1962, a hearing on plaintiffs\u2019 said motion to strike was continued to permit counsel for defendant to take the deposition of Mayfield in order to obtain \u201cadditional information and evidence\u201d for use by defendant in the hearing on plaintiffs\u2019 said motion. The record does not show whether the deposition of Mayfield was taken.\nOn September 17, 1962, the cause came on for hearing on plaintiffs\u2019 said motion at which time an order was signed in which the court \u201cORDERED, ADJUDGED AND DECREED that the motion of the plaintiffs in this action to strike all of the First and Second Answers and Defenses and Paragraphs 1, 2, and 3 of the prayer for relief as set out in the answer of the defendant, E. Jack Price, is allowed.\"\nThe said order of September 17, 1962, contains no reference to the Mayfield affidavit or to a deposition of Mayfield. Nor does it contain any findings of fact.\nDefendant excepted (1) \u201cto the signing and entry of the order striking out the first further answer and defense,\u201d and (2) \u201cto the signing and entry of the order striking the second further answer and defense and the material from the prayer for relief,\u201d and appealed.\nHoward B. Arbuckle, Jr., and Carswell & Justice for plaintiff ap-pellees.\nHelms, Mulliss, McMillan & Johnston for defendant appellant." }, "file_name": "0345-01", "first_page_order": 389, "last_page_order": 394 }