Jewell v. Price

130 S.E.2d 668 (1963)

259 N.C. 345

Randolph J. JEWELL and Eleanor K. Jewell, Plaintiffs, v. E. Jack PRICE, Defendant.

No. 250.

Supreme Court of North Carolina.

May 1, 1963.

*671 Helms, Mulliss, McMillan & Johnston, Charlotte, for defendant appellant.

Howard B. Arbuckle, Jr., and Carswell & Justice, Charlotte, for plaintiffs appellees.

BOBBITT, Justice.

Plaintiffs' 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' motion to strike, in effect sustained a demurrer to each of defendant's further defenses. Hence, Rule 4(a), Rules of Practice in the Supreme Court, 254 N.C. 783, 785, does not apply. Chas. H. 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 cases cited.

"A demurrer or motion to strike admits, for the purpose of the hearing thereon, the *672 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's 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." 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.

In the first further answer and defense, defendant alleged inter alia that Lumbermens Mutual Casualty Company, plaintiffs' insurer, "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 Casualty Company, not plaintiffs, is "the real party in interest." G.S. § 1-57.

Where 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 subrogated to the owner's (indivisible) cause of action against such third party. In such event, the insurance company is "the real party in interest" (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; Milwaukee Insurance Co. v. McLean Trucking Co., 256 N.C. 721, 125 S.E.2d 25.

Plaintiffs, in their motion to strike, assert that "Lumbermens Mutual Casualty Company is not the real party in interest," that "the payments by said company to the plaintiffs * * * covered only a portion of the plaintiffs' loss," and that defendant did not allege facts but conclusions.

Defendant's 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 "speaking demurrer," see J. A. Jones Construction Co. v. Local Union 755 of the International Brotherhood of Electrical Workers, 246 N.C. 481, 488-489, 98 S.E.2d 852, and cases cited. Moreover, if and when defendant's 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; Penn Dixie Lines v. Grannick, 238 N.C. 552, 78 S.E.2d 410.

For the reasons stated, the portion of Judge McConnell's order allowing plaintiffs' motion to strike in its entirety defendant's first further answer and defense and paragraph 1 of his prayer for relief is reversed.

With reference to the second further answer and defense, defendant had a clear right to allege that he had built plaintiffs' 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's order allowing plaintiffs' motion to strike in its entirety defendant's second further answer and defense and paragraphs 2 and 3 of his prayer for relief, is reversed.

Whether particular allegations of either or both of defendant's 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. First National Bank of Catawba County, 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 "of * * * new matter constituting *673 a defense" (G.S. § 1-135(2)) to withstand plaintiffs' motion that it be stricken in its entirety.

No 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.

As to matters dehors the record, albeit discussed freely in the briefs, we refrain from comment.

Reversed.