UNIVERSITY MOTORS, INC.
v.
DURHAM COCA-COLA BOTTLING COMPANY and Roy Gordon Moss.
No. 767.
Supreme Court of North Carolina.
January 14, 1966.*105 Newsom, Graham, Strayhorn & Hedrick and Josiah S. Murray, III, Durham, for plaintiff appellant.
Dupree, Weaver, Horton, Cockman & Alvis, Raleigh, and Brooks & Brooks, Durham, for defendant appellees.
BOBBITT, Justice.
Plaintiff's appeal presents these questions: (1) Did the court err in denying plaintiff's motion to nonsuit corporate defendant's counterclaim? (2) Did the court err in denying plaintiff's motion to strike defendants' first further answer and defense? (3) Did the court err in denying plaintiff's motion to strike the testimony quoted in our preliminary statement relating to payments made to plaintiff by its collision insurance carrier?
There is ample evidence that the collision and resulting damage were proximately caused by Goodwin's negligence. Plaintiff contends that defendants' evidence establishes as a matter of law that Moss was contributorily negligent. With reference to the counterclaim, the corporate defendant's status is that of a plaintiff. Hence, in passing upon whether the court should have nonsuited the counterclaim, the evidence must be considered in the light most favorable to the corporate defendant. Evidence favorable to plaintiff must be disregarded. Gillikin v. Mason, 256 N.C. 533, 124 S.E.2d 541; Robinette v. Wike, 265 N.C. 551, 144 S.E.2d 594.
*106 While the evidence was in sharp conflict, there was evidence sufficient to permit the jury to make the factual findings narrated below.
Goodwin approached and entered the intersection, traveling in the east lane of Duke, when the signal light facing him was red. The collision occurred in the east lane of Duke, approximately 10 feet north of the south curb line of Trinity and 20-25 feet east of the west curb of Duke. The front of the Chrysler collided with the right side of the Coca-Cola truck "right behind the cab." The Chrysler made skid marks 36 feet long. They began 26 feet south of the south curb of Trinity.
Physical conditions at the southwest corner of said intersection obstructed to an undefined extent Goodwin's view of eastbound traffic on Trinity and Moss' view of northbound traffic on Duke. Goodwin first saw the Coca-Cola truck when it was coming into the intersection from his left. Moss did not see the Chrsyler prior to the collision.
As Moss approached the intersection at a speed of 20-25 miles an hour, the signal light facing him was green. When 45 feet away, a Volkswagen, traveling north on Duke, crossed the intersection although faced by the red light. Moss glanced to his right, saw no other vehicle on Duke Street, reduced his speed slightly, looked ahead to make sure and found that the green light was still facing him, and had proceeded at least two-thirds across the intersection when the collision occurred. Moss "heard tires squealing as (he) was going under the light."
When the evidence is considered in the light most favorable to the corporate defendant, and applying legal principles discussed fully in Stathopoulos v. Shook, 251 N.C. 33, 110 S.E.2d 452, and cases cited therein, we cannot say that the only reasonable inference or conclusion that may be drawn therefrom is that Moss was put on notice that Goodwin could not or would not stop in obedience to the red light at a time when Moss could have avoided the collision by the exercise of due care. We conclude it was proper to submit to the jury the issues arising on the corporate defendant's counterclaim and that plaintiff's motion to nonsuit said counterclaim was properly denied.
Judge Latham properly overruled plaintiff's motion to strike defendants' first further answer and defense. Smith v. Pate, 246 N.C. 63, 97 S.E.2d 457; Jewell v. Price, 259 N.C. 345, 130 S.E.2d 668.
Nothing else appearing, plaintiff would be entitled to the recovery, if any, for damages to its Chrysler. Defendants' first further answer and defense is a plea in bar. If, as defendants alleged, the entire loss had been paid by plaintiff's collision insurance carrier, plaintiff was not the real party in interest and could not maintain the action. Whether in the circumstances of the particular case a plea in bar is to be disposed of prior to trial on the merits is for the court, in the exercise of its discretion, to determine. Gillikin v. Gillikin, 248 N.C. 710, 104 S.E.2d 861; Cowart v. Honeycutt, 257 N.C. 136, 125 S.E.2d 382.
Plaintiff's motion to strike defendants' first further answer and defense in its entirety was in substance, if not in form, a demurrer thereto. In passing upon said motion, the factual allegations of defendants' first further answer and defense are deemed admitted. Hence, defendants' allegation that plaintiff's collision insurance carrier had paid plaintiff the full amount of its loss 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. If it be considered that defendants' said factual allegation was properly traversed by the allegations in plaintiff's said motion, the factual issue so raised, absent waiver, would be for determination by a *107 jury. G.S. § 1-172; Hershey Corp. v. Atlantic Coast Line R. Co., 207 N.C. 122, 176 S.E. 265; Penn Dixie Lines v. Grannick, 238 N.C. 552, 78 S.E.2d 410; Jewell v. Price, supra.
Plaintiff could have moved that the court, in the exercise of its discretion, determine the factual issue raised by defendants' said plea in bar prior to trial of the action on the merits. It did not do so. When the cause came to trial, evidence bearing upon the issue raised by defendants' first further answer and defense, including the testimony of plaintiff's secretary and treasurer, was relevant. The fact the testimony elicited by defendants, particularly when clarified on redirect examination, did not support defendants' first further answer and defense is not determinative as to its relevance.
Defendants having introduced the subject of plaintiff's collision insurance by their pleading and by cross-examination of plaintiff's secretary and treasurer with reference thereto, no reason appears why plaintiff could not have shown the full facts concerning its collision coverage, including the fact that the plaintiff itself would not benefit by a recovery unless the recovery exceeded the amount to which its insurance carrier would be entitled as subrogee. Plaintiff did not see fit to develope these facts. It is noteworthy that, under the evidence, plaintiff's collision insurance carrier, while not a necessary party, would have been a proper party to the action. Burgess v. Trevathan, 236 N.C. 157, 72 S.E.2d 231; Smith v. Pate, supra; Southeastern Insurance Co. v. Moore, 250 N.C. 351, 108 S.E.2d 618.
It is noted that plaintiff did not object to the question asked by defendants' counsel. Its exception is to the denial of its motion to strike the answer. "When there is no objection to the testimony, a motion to strike is addressed to the discretion of the trial court, and its ruling thereon is not subject to review in the absence of abuse." 4 Strong, N. C. Index, Trial § 15, p. 303.
For the reasons stated, the conclusion reached is that plaintiff has failed to show prejudicial error.
No error.