Isley v. Winfrey, 221 N.C. 33 (1942)

Feb. 25, 1942 · Supreme Court of North Carolina

221 N.C. 33

GEORGE H. ISLEY v. MONROE WINFREY and STANDARD OIL COMPANY OF NEW JERSEY, INCORPORATED.

(Filed 25 February, 1942.)

Bill of Discovery § 7 — Indemnity policy and contract between parties held competent upon question of whether individual defendant was employee.

Plaintiff sued the corporate defendant upon allegations that its employee inflicted negligent injury in the course of his employment. The corporate defendant alleged that the individual defendant was an independent contractor and not an employee. Plaintiff alleged that the corporation had taken out a policy of insurance protecting it against liability for negligence of the individual defendant, and moved for inspection of the policy and the contract between defendants relating to the employment. Held: The granting of the motion was without error, since the writings may become relevant in the trial upon the question of the relationship between the parties.

Appeal by defendant Standard Oil Company of New Jersey from Blackstoclc, Special Judge, at September Term, 1941, of Rockingham.

Affirmed.

Hunter K. Penn and D. F. Mayberry for plaintiff, appellee.

J. 0. Brown for defendant, appellant.

Devtn, J.

Tbis case is bere upon appeal from an order of tbe judge below requiring tbe production for inspection and copy, and for use at tbe trial, of certain papers in tbe possession of tbe defendant Standard Oil Oo. Tbe ruling complained of was predicated upon tbe pleadings in an action instituted by tbe plaintiff to recover damages for a personal injury due to tbe negligent operation of a motor truck driven by defendant Winfrey. It was alleged tbat defendant Winfrey was an employee of defendant Oil Company, and tbat be was acting at tbe time of tbe injury witbin tbe scope of bis employment. Defendants denied negligence, and alleged tbat Winfrey was an independent contractor, and tbat tbe defendant Oil Company was in no way responsible for any act or omission on bis part.

In view of these pleadings tbe plaintiff entered motion, under C. S., 1823 and 1824, supported by affidavit, alleging that tbe defendant Oil Company bad in its possession a policy of liability insurance issued to it by tbe Fidelity and Casualty Company of New York protecting it from liability for negligence of Winfrey, and tbat defendant Oil Company also bad in its possession tbe contract between tbe defendants relating to tbe employment of Winfrey, and plaintiff asked tbat these papers be produced for inspection and copy, and for use at tbe trial.

Tbe propriety of tbe allowance of tbe motion for tbe production of tbe papers specified is supported by wbat was said in Rivenbark v. Oil Corp., 217 N. C., 592, 8 S. E. (2), 919, where numerous pertinent authorities are cited. In that case, upon similar showing, tbe order of tbe trial judge, requiring production of liability insurance policy and related correspondence, was, on appeal, affirmed.

From the pleadings here it seems that tbe contract between the defendants and tbe policy of liability insurance called for may become relevant in tbe trial upon tbe question of the relationship between tbe defendants. Davis v. Shipbuilding Co., 180 N. C., 74, 104 S. E., 82. Defendant’s exception to tbe order, on tbe ground that tbe affidavit upon which tbe motion was based was insufficient, cannot be sustained.

Judgment affirmed.