We are of opinion that the court properly ruled in striking out as irrelevant or redundant the matter inserted by plaintiff in the paragraphs designated and as quoted in the foregoing statement of facts.
It may be noted that the authorities are extremely divergent on the subject of liability of charitable institutions for injuries resulting from the negligence of their agents or employees. See Annotations 14 A. L. R., 512; 23 A. L. R., 923; 30 A. L. R., 455; 33 A. L. R., 1369; 42 A. L. R., 971; 62 A. L. R., 724; 67 A. L. R., 1112; 86 A. L. R., 491; 109 A. L. R., 1199. (a) The courts of some jurisdictions deny all liability, (b) Some hold such institutions as much subject as others to the doctrine of respondeat superior, (e) But the majority hold that in relation to those who receive benefits provided by it, a charitable institution is not liable for the negligence of its agents or employees if it has exercised reasonable care in their selection and retention. See Annotations 109 A. L. R., 1199, at 1201.
It is noted also that the decisions of this Court are in harmony with the view of the majority.
Green v. Riggs,
*614
The complaint should contain “a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition.” C. S., 506. In reply to answer of defendant, plaintiff “may allege in ordinary and concise language, without repetition, any new matter not inconsistent with the complaint, constituting a defense to the new matter in the answer.” C. S., 525. But the statute, C. S., 537, provides that “if irrelevant or redundant matter” be inserted in a pleading, upon motion of the party aggrieved thereby, it may be stricken out. Where such motion has been made in apt time, “it is not addressed to the discretion of the court, but is made as a matter of right.”
Hosiery Mills v. Hosiery Mills,
In
Pemberton v. Greensboro,
In
Duke v. Children’s Commission, supra,
reversing ruling of the court in refusing to strike out a paragraph of the complaint in which matter similar to that first in question here was inserted,
Schenck, J.,
said: “It has been repeatedly held by this Court that in an action for damages for a personal injury evidence that the defendant’s liability for the act complained of has been insured by a third person, is ordinarily incompetent.
Lytton v. Mfg. Co.,
See, also,
Revis v. Asheville,
However, the attorney for plaintiff in brief filed in this Court makes these two contentions: (1) That the allegations stricken from plaintiff’s *615 reply are relevant to meet tlie defenses set up by tbe defendants; and (2) that the stricken portions of the reply are relevant upon the issue of whether the swimming pool of the defendants is in fact conducted as a charitable enterprise.
1. While heretofore the exact question as applied to charitable institutions has not been passed upon by this Court, it has been held in the case of
Borders v. Cline,
However, the prevailing rule in other jurisdictions, with the exception of Tennessee, is that the fact that a charitable institution procures indemnity insurance indemnifying it from liability will not impose liability on it for the torts of its agents where it would not otherwise be liable. 14 C. J. S., 550, Charities Section 75;
In fact, in
McLeod v. St. Thomas Hospital
(1936),
*616 Thus it appears that that Court still adheres to the principle of total immunity as contradistinguished from the principle of partial immunity recognized and adopted by this Court. Hence, in the light of the prevailing rule in other jurisdictions and of pertinent principles enunciated in this jurisdiction the reasoning and analogous authority set forth for the conclusion reached by the Court of Appeals of Tennessee are not sufficiently persuasive for application and adoption to the ease in hand.
2. In support of her second contention plaintiff relies upon decision of this Court in
Davis v. Shipbuilding Co.,
In the case in hand, taking out and carrying liability insurance is not inconsistent with defenses set up by defendant in that under the law as declared in this State a charitable institution has tort liability under certain circumstances, that is, to a beneficiary of its charity for injury resulting from the negligence of its agents, servants and employees in the selection or retention of whom it has failed to exercise due care,
Green v. Biggs, supra; Hoke v. Glenn, supra,
and for negligent injury to a servant or employee.
Cowans v. Hospitals,
Therefore, in the present case if it be conceded that defendants had taken out and, at the time of the alleged injury to plaintiff, had in effect a policy of insurance against liability arising out of the operation of the swimming pool and building referred to, in an amount sufficient to pay *617 any sum recovered by plaintiff against defendant that fact would no more tend to prove that defendants were operating the swimming pool and building as a business enterprise for profit than it would tend to show that they were operating same as a charitable institution.
The judgment below is
Affirmed.