Hensley v. McDowell Furniture Co.
80 S.E. 154
N.C.
1913
Check Treatment
Walker, J.,

аfter stating the facts: If the facts are truthfully stated in the affidavit of L. J. P. Cutlar, it is apparent *150 that tbe Maryland Casualty Company has made no such contract with its codefendant, McDowell Furniture Company, as is alleged in the complaint, for the reason that the policy, which is set out in full and annexed to the affidavit, will bear no such cоnstruction as the plaintiff has put upon it, but a very different one in fact and in "law; and it may be further said that if the contract subsisting between the defendants at the time of the injury is сorrectly set forth in the coxiy annexed to the- affidavit,, then the casualty company has been improperly joined as a defendant, and if, at the trial, the facts should so appear, the court should enter judgment in its favor and against the plaintiff for its costs, and continue the case against the other defendant, or take such other measure for its protection, if it shall appear to have been prejudiced by the joinder in making its defense before the jury then impaneled to try the cause. We must leave these' matters largely to the exercise of the .presiding judge’s discretion, who can better understand the exigencies of the рarticular case, under the circumstances, than we can. He should, and no doubt in all cases will, use this discretion with judgment, not timidly, but with firmness and courage, and yet judiciously, for thе purpose intended; so that each of the'parties may have a fair and impartial trial under the law and facts, without any extraneous influences or cоnsiderations which may tend to defeat the true and even administration of justice, which is the ultimate and principal object of all well ordered judicial systems.

Judiciаl' discretion, said Coke, is never exercised to give effect to the mere will of the judge, but to the will of ‍‌​‌‌​​​‌‌‌‌​​‌‌‌‌‌​‌​​‌‌‌​​‌‌‌​‌​‌‌‌​​​‌‌​‌‌‌​‌‌‍the law. The judge’s proper function, when using it, is to discern according to law what is just in the premises. “Discernere per legem quid sit justum.” Osborn v. Bank, 9 Wheat., 738. WRen applied to a court of justice, said Lord Mansfield, discretion means sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague, and fanciful, but legal and regular. 4 Burrows, 2539. While the necessity for exercising this discretion, in any given case, is not to be determined by the mere inclination of the judge, but by a sound *151 and enlightened judgment, in an effort to attain the еnd of all law, namely, the doing of even and exact justice, we will yet •not supervise it, except, perhaps, in extreme circumstances, not at all likely to. аrise; and it is therefore practically unlimited. We do not interfere unless the discretion is abused. Jarrett v. Trunk Co., 142 N. C., 466.

These observations seem to be necessary ‍‌​‌‌​​​‌‌‌‌​​‌‌‌‌‌​‌​​‌‌‌​​‌‌‌​‌​‌‌‌​​​‌‌​‌‌‌​‌‌‍in view of what we sаid (by Justice Hoke) in Clark v. Bonsal, 157 N. C., 270, a suit brought upon a like policy: “In construing contracts of this character, the courts have generally held that if the indemnity is clearly one against loss or damаge, no action will lie in favor of the insured till some damage has been sustained, either by payment of the whole sum or some part of an employee’s clаim; but if the stipulation is, in effect, one indemnifying against liability, a right of action accrues when the injury occurs, or, in some instances, when the amount and rightfulness of the claim have been established by judgment of some court having jurisdiction — this according to the terms of the policy; but unless the contract expressly provides that it is taken out' fоr the benefit of the injured employees and the payment of recoveries by them, none of the cases hold that an injured employee may, in the first instance, proceed directly against the insurance company. In all of them, so far as examined, a right of action arising on the policy is treated and dealt with as an • asset of the insured employer, and, in the absence of. an assignment from him, the employee cannot appropriate it to his claim, exceрt by attachment or bill in the nature of an equitable /£. fa. or some action in the nature of final process, incident to bankruptcy or insolvency. Certainly this position is suрported by the great weight of authority,” citing many authorities to support the proposition thus stated by him.

A declaration of defendant’s president, that the comрany was insured and would have to pay ‍‌​‌‌​​​‌‌‌‌​​‌‌‌‌‌​‌​​‌‌‌​​‌‌‌​‌​‌‌‌​​​‌‌​‌‌‌​‌‌‍the loss, was held incompetent and excluded by this. Court in the following language of Justice Brown, in Lytton v. Manufacturing Co., 157 N. C., 331: “In addition to the incompetency of Little’s declarations as mere hearsay, the subject-matter of the declaration is universally *152 beld to be incompetent and disconnected witb the inquiry before the court. Evidence that the defendant in an action for damages arising from an injury is insured in a casualty company is entirely foreign to the issues raised by the pleadings and is inсompetent. By some courts it is held to be so dangerous as to justify another trial, even when the trial judge strikes it from the record,” citing many cases.

There may, of cоurse, be cases where it can readily be seen that no prejudice has arisen, and, perhaps, others where it will plainly appear to be otherwisе. It is the highest prerogative of the judge, in any court, and his bounden ‍‌​‌‌​​​‌‌‌‌​​‌‌‌‌‌​‌​​‌‌‌​​‌‌‌​‌​‌‌‌​​​‌‌​‌‌‌​‌‌‍duty as well, to see that rights of parties before the law are not prejudiced or impaired by irrelevant or foreign matters of any kind, and for this purpose he is endowed with plenary authority. If it be the judge sitting at nisi prius, who is exercising this power of the law to do justice, we will not rеview or revise his orders, but sustain them, as in no case do we review the exercise of discretion unless there appears clearly to have been some abuse of it which is prejudicial to one of the parties, which, if it ever arises, must be of very rare occurrence. But, in this case, the learned judge, intending doubtless tо enforce what appeared to him to be the legal rights of the defendant, went -too far, and required the plaintiff to do something not within his power to require, аnd thereby transcended the limit of his jurisdiction. He properly ordered him to amend the complaint by making it more definite and certain. Pell’s Revisal, sec. 406 and notes; Clаrk’s Code (3 Ed.), sec. 261; Wood v. Kincaid, 144 N. C., 393; Smith v. Summerfield, 108 N. C., 284; Conley v. R. R., 109 N. C., 696; Allen v. R. R., 120 N. C., 548; Best v. Clyde, 86 N. C., 4. These cases also hold that the motion to make a pleading more definite and certain must be made in apt time, and if made after answering or demurring, it comes too late, and then falls within the discretion of the judge, who may allow it or not, as he may deem best. His refusal to allow it will not be reviewed (Best v. Clyde, supra), unless it is based upon his supposed want of power. Henderson v. Graham, 84 N. C., 496. This rule is analogous to the one ‍‌​‌‌​​​‌‌‌‌​​‌‌‌‌‌​‌​​‌‌‌​​‌‌‌​‌​‌‌‌​​​‌‌​‌‌‌​‌‌‍which prevails in the courts *153 of equity, that for mere impertinence a reference is not granted after defendant bas answered or submitted to answer by obtaining an order for time, tbougb a reference was allowed for scandal, and, under tbe later Code System, motions to mate a pleading morе definite and certain are denied if defendant bas 'answered or obtained an extension of time to plead, or bas done any act legally admitting that a suffiсient issue is raised.

But bere, tbe judge bas required plaintiff not only to make, bis pleading more definite and certain, which was witbin his-power, but bas required bim to annex a copy of tbe contract as stated in tbe affidavit offered by defendant. He can direct tbe plaintiff generally bow be shall plead, but be cannot plead for. bim, nоr take from bim tbe right to plead and show by proof wbat tbe contract really is. He is not bound to accept tbe defendant’s version of it; Tbe judge, tbougb, as we havе said, may act afterwards, when it does appear, certainly, wbat tbe Contract is,, and prevent any prejudice to tbe defendant by reason of tbe imprоper jo.inder, as a defendant, of the casualty company. He cannot, of course, deny to tbe plaintiff tbe right to have any disputed fact passed upon by tbe jury. It is only when tbe nature of tbe contract is either admitted or appears beyond question that bis discretion, in tbe interest of a fair trial, may be exercisеd. But whenever this is disclosed, tbe judge may, at any stage of tbe trial, exercise tbe discretion lodged in bim, as justice may require.

Tbe order -is, therefore, modified by sustaining it so fаr as plaintiff is required to make bis complaint more definite and certain, and vacating tbe other requirements.' Each party will pay one-balf of tbe costs in this Court.

Modified.