A. V. SANDERS, Administrator of the Estate of James Leverne Sanders, Deceased
v.
Alford CHAVIS.
No. 593.
Supreme Court of North Carolina.
January 13, 1956.*752 McLean & Stacy, Lumberton, for defendant, appellant.
Coble Funderburk, Monroe, for plaintiff, appellee.
DENNY, Justice.
The defendant excepts to the failure of the court below to find certain facts in accord with his prayer therefor, and also excepts to the second, third, fifth, eighth, ninth, tenth and eleventh findings of fact as set out hereinabove. He further excepts to the first conclusion of law, the denial of the motion to set aside the judgment entered at the November Term 1954 of the Superior Court of Hoke County, and to the judgment entered pursuant to the findings of the court and its conclusion of law.
The primary question presented for determination on this appeal is simply this: Is there any competent evidence to support the court's finding that the neglect on the part of the defendant in failing to defend this action was inexcusable?
Certainly some of the findings with respect to insurance coverage on the car involved in the accident on 23rd December, 1953, and certain conferences between a representative of the insurance company and the attorney for the plaintiff are not germane to the question before us. This is particularly true with respect to any conferences between an agent of the insurance company and the plaintiff's attorney. The insurance company is not a party to this action. Hence, finding of fact No. 5 will be set aside since it does not have any bearing on the conduct of this defendant with respect to his failure to defend the action. The defendant's conduct must be judged by what he did and not what someone, not a party to the action, did. Earle v. Earle, 198 N.C. 411, 151 S.E. 884.
The defendant introduced in his behalf an affidavit signed by an assistant claim manager of The Travelers Indemnity Company to the effect that such company, because of the assigned risk, issued its policy of indemnity insurance covering an automobile owned by the defendant, Alford Chavis; that the automobile insured in the name of the defendant by his company was wrecked and that the affiant is advised that James Leverne Sanders was killed as a result of said wreck; that The Travelers Indemnity Company had no knowledge of the institution of this action and no opportunity to defend its insured, Alford Chavis.
Conceding all this to be true, there is nothing in this affidavit that tends to justify the defendant's failure to defend the action or to notify his insurer to do so. Neither do we construe the finding based on this affidavit to be prejudicial to the defendant.
The defendant, in support of his motion, submitted an affidavit in which, among other things, he said: "I took them (the papers) to Mr. A. V. Sanders and asked what the papers were and what to do with them. I cannot read or write. Mr. Sanders looked at the papers and said he did not know what to do with them and that probably my insurance man would be around in a day or two. I did not know the name of the insurance company or the name of the adjuster who had investigated the accident and therefore I did not know how to get in touch with the insurance company * * *. I went to Fayetteville, N. C. the first Saturday after getting the papers to try and locate the adjuster but I could not remember the name."
A. V. Sanders submitted an affidavit in which he said: "That he is the Administrator of the Estate of James Leverne Sanders; that on or about the 17th day of August, *753 1954, after the Sheriff had served the summons and a copy of the summons, together with a copy of the complaint, upon the defendant, the defendant asked the affiant about the papers; that affiant told him that affiant was the one bringing the action, and therefore could not advise him as to what to do, but told the defendant to see his insurance agent who would advise him what to do in the matter; that the defendant, Alford Chavis, never discussed the matter with the affiant further."
A further affidavit by Alford Chavis was introduced in which he said: "That he knows J. H. Austin, agent for the Travelers Indemnity and Insurance Company (The Travelers Indemnity Company); that he purchased the insurance on the 1947 Chevrolet in which he, James Leverne Sanders, and Albert Rufus Sanders were riding at the time of the accident, from J. H. Austin; that J. H. Austin lives in Raeford, North Carolina, and that the affiant also lives in Raeford, North Carolina; that the said J. H. Austin lives within two miles of the affiant, Alford Chavis' home."
Other affidavits were submitted tending to show that Alford Chavis is a man of average intelligence; has worked for the same employer for more than ten years; that he has a wife and one child; that he looks after all the regular business of his home; that he works regularly and has above average business intelligence for a man with little education; that he trades cars himself without asking the approval of anyone and makes good trades; that he buys his own insurance on cars and has sufficient intelligence and business ability to know what "to do with the papers served on him by the Sheriff of Hoke County" and what the action meant.
We concede, as contended by the defendant, that the eighth finding of fact, to the effect that "all the evidence both for the defendant and for the plaintiff shows that A. V. Sanders told him (the defendant) to contact his insurance agent," is not supported by the defendant's evidence. Nevertheless, the plaintiff's evidence was sufficient to support the finding that the plaintiff did tell the defendant to contact his insurance agent. Moreover, we think the evidence contained in the affidavits offerred by the plaintiff is sufficient to sustain the finding that the plaintiff did nothing to hinder, delay, or interfere with the defendant in the defense of the action in controversy, and that the pertinent findings bearing on the primary question presented for our determination are supported by competent evidence. Therefore, such findings are binding on review. Perkins v. Sykes, 233 N.C. 147, 63 S.E.2d 133; Van Hanford v. McSwain, 230 N.C. 229, 53 S.E.2d 84; Carter v. Anderson, 208 N.C. 529, 181 S.E. 750.
In our opinion, the remaining assignments of error present no error sufficiently prejudicial to the defendant to justify a reversal of the judgment below.
In light of the finding that the defendant's negligence was inexcusable, the fact that he may have a meritorious defense, and the court so found, becomes immaterial. Stephens v. Childers, 236 N.C. 348, 72 S.E.2d 849; Pate v. R. L. Pittman Hospital, Inc., 234 N.C. 637, 68 S.E.2d 288; Whitaker v. Raines, 226 N.C. 526, 39 S.E.2d 266; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67.
We do not consider what defenses the defendant's insurer may interpose by reason of the failure of Alford Chavis to notify it of the institution of this action against him, by reason of the terms of the policy or pursuant to the provisions of the Motor Vehicle Safety and Responsibility Act, G.S. §§ 20-224 through 20-279. These are matters which cannot be adjudicated in this action. Therefore, any finding in this action with respect to the existence of insurance and the conduct of the insurer in relation thereto, shall be without prejudice to the rights of such insurer in any other action relating thereto.
The judgment below is
Affirmed.