McLean Trucking Co. v. Dowless

106 S.E.2d 510 (1959)

249 N.C. 346

McLEAN TRUCKING COMPANY, a North Carolina corporation, v. T. C. DOWLESS, individually, and trading and doing business as T. C. Dowless Transfer.

No. 389.

Supreme Court of North Carolina.

January 14, 1959.

Deal, Hutchins & Minor, Roy L. Deal, Winston-Salem, Womble, Carlyle, Sandridge & Rice, I. E. Carlyle, Winston-Salem, for defendant, appellant.

Spry, White & Hamrick, Claude M. Hamrick, Winston-Salem, for plaintiff, appellee.

HIGGINS, Justice.

Motions to amend the pleadings to make the same more definite, and to strike, and orders thereon have been heard on repeated *513 occasions and by three different judges of the superior court. While the matters actually in dispute do not appear too complicated, yet the pleadings have been added to and taken from to such extent a clear understanding of them can be gained only by painstaking study and analysis. Since the case must go back for another hearing, it is suggested the parties recast their pleadings in the interest of clarity and to the end the trial court and jury may understand what matters are actually involved in the case. The Court calls attention, also, to the fact that 50 pages of the record are taken up by the evidence in question and answer form in violation of Rule 19(4), Rules of Practice in the Supreme Court, 221 N.C. 553.

The jury had trouble with the first issue and asked if it might not be answered in two parts, to which the court replied it should be answered yes or no. The defendant had set up contributory negligence on the part of the driver Matheson as a defense to the claim for damages to the cargo of the truck driven by him. Whether Barnes was the employee of the plaintiff or of the defendant was raised by the pleadings. Three appropriate issues raising these questions were tendered by the defendant. The court refused to submit them and instead submitted issue No. 1. The jury's trouble in answering it would have been obviated by the submission of the separate issues tendered by the defendant.

The jury refused to follow the court's peremptory instruction to answer the second issue yes, and answered it no. The pleadings and the evidence raised the issue whether paragraph 22 was intended by the parties as a part of the trip lease agreement. The agreement was drawn by counsel for the plaintiff. The signatures of the parties executing it appear on page 3. Section 22, under which the plaintiff claims the right of indemnity, appears on page 4. Between the signatures on page 3 and the indemnity clause on page 4, there appear receipts for equipment to be signed by the plaintiff only, both of which are on page 3. At the beginning of page 4 are blanks for information with respect to the driver and the helper, including a certificate of a doctor as to their physical condition. The lease was comparatively new, supplanting one of a single page. The pleadings and the evidence raise the question whether the defendant is bound by paragraph 22 which appears on another page of the lease below and beyond the formal execution signatures. The issue should be decided on the basis of the intention of the parties.

That the court had a mistaken view of the issues discussed above is shown by the following from the judgment: "And it appearing to the Court that the contracts alleged in paragraph 3 of the Complaint, particularly the contract pertaining to the truck driven by Ed Shafton Barnes, were executed by the defendant and the execution thereof is admitted by paragraph 1 of the Further Defense No. 6 of the Amendment to the defendant's Amended Answer."

Paragraph 3 of the complaint alleged the execution of the lease (by reference made a part of the paragraph). The amended answer to paragraph 3 contains the following: "The defendant admits signing the first three pages of the lease agreement. * * * The defendant denies, however, that page 4 (on which indemnity provision No. 22 appears) constituted a part of the contract of lease."

The first paragraph of the defendant's further defense No. 6 contains the following: "The defendant admits signing the first three pages of the written lease agreement, a copy of which is attached to the complaint. The defendant denies, however, that page 4 constituted a part of the contract of lease * * *"

It may be noted that nowhere in the record does the defendant admit the execution of any part of the lease agreement below and beyond the signatures on page *514 3. He specifically denies in the answer, in the amended answer, and in further defense No. 6 that Section 22, under which the plaintiff claims the right to recover, was a part of the contract. The evidence offered by the parties required the submission of the issue to the jury. The court committed error in attempting to answer it as a matter of law.

Also raised by the pleadings is the question whether paragraph 12 of the lease places responsibility for loss upon the plaintiff by its own terms, or, if not, whether defendant paid for the insurance contemplated by the paragraph as he alleges; and, if so, whether by so doing he is relieved of responsibility for the loss.

A question of law may also arise whether there is a conflict between paragraph 12 and paragraph 22 of the lease if it be found that paragraph 22 is a part thereof. That question of law was not passed on by the superior court, but should be before it can be heard here.

Nothing in this opinion is intended to vary or change the holding of this Court in the well considered case of Newsome v. Surratt, 237 N.C. 297, 74 S.E.2d 732. There the facts were stipulated. The court entered the judgment based on them. Here the facts are in dispute. The court cannot enter judgment until the facts are determined.

The plaintiff sued for $16,027.94, made up of two items: One for $8,134.29 paid to the dependents of Matheson on account of his death; the other for $7,893.65 paid to the United States for loss of cargo, and wrecker and transportation charges. The judgment was upon motion by plaintiff for judgment with respect to a part of the relief sought. That is, recovery of the amount paid to the dependents of Matheson only. That part of the claim paid to the United States for loss of cargo is left undetermined. Apparently the trial judge, upon the plaintiff's motion, attempted to do what this Court has said many times cannot be donesettle a case piecemealadjudicate in part and withhold in part. "Can the court, by consent, enter a fragmentary judgment settling a part of the case and leave part of the issues to be settled at a later date or in another action? A judgment is conclusive as to all issues raised by the pleadings. When issues are presented it is the duty of the court to dispose of them. Parties, even by agreement, cannot try issues piecemeal. The courts and the public are interested in the finality of litigation. * * * Horne v. Edwards, 215 N.C. 622, 3 S.E.2d 1. `The law requires a lawsuit to be tried as a whole and not as fractions. Moreover, it contemplates the entry of a single judgment which will completely and finally determine all the rights of the parties.' Erickson v. Starling, 235 N.C. 643, 71 S.E.2d 384, 395 * * *. `Appellate procedure is designed to eliminate the unnecessary delay and expense of repeated fragmentary appeals, and to present the whole case for determination in a single appeal from a final judgment.'" Hicks v. Koutro, 249 N.C. 61, 105 S.E.2d 196, 199.

This Court does not undertake to fix with finality the issues to be submitted on the new trial. They can only be determined after the evidence is in. The Court has discussed a number of them for the purpose of pointing out the errors in the trial below. To the end that disputed issues of fact raised by the pleadings and supported by evidence may be resolved by the jury, the judgment of the superior court is set aside and the case remanded to the Superior Court of Forsyth County for a

New trial.