Green v. Western & Southern Life Insurance, 250 N.C. 730 (1959)

Sept. 23, 1959 · Supreme Court of North Carolina

250 N.C. 730

HILLIARD GREEN v. THE WESTERN AND SOUTHERN LIFE INSURANCE COMPANY, A Corporation, and IMPERIAL LIFE INSURANCE COMPANY, A North Carolina Corporation in process of dissolution.

(Filed 23 September, 1959.)

1. Appeal and Error § 3: Trial § 5% —

Appeal from a provision of a pretrial order fixing tbe issue and the rule for the admeasurement of damages is premature and will be dismissed, since the trial judge has the discretionary power to modify same. G.S. 1-169.1.

Higgins, J., not sitting.

Appeal by plaintiff from Pless, J., June 1959 regular civil term. BunCOMbe.

Civil action to recover damages for an alleged unlawfúl and tor-tious liquidation and dissolution of the Imperial Life Insurance Company, over the dissent of plaintiff, a minority stockholder.

At a pre-trial hearing (G.S. 1-169.1) the court entered an order that one issue should be submitted to the jury: “What amount of damage is the plaintiff entitled to recover of the defendant?” In the pre-trial order the court went further, and held what the rule of damages would be and the maximum' possible recovery, and gave an explanation for its holding. The last sentence of the pre-trial order reads: “This statement is for the information of the trial judge, and is not intended to constitute a ruling.”

Plaintiff excepted to the pre-trial order, and appealed to the Supreme Court.

William J. Cocke for plaintiff, appellant.

Uzzell & DuMont By: William B. Greene for defendants, appellees.

Per Curiam.

G.S. 1-169.1, in respect to Pre-Trial Hearings, reads in part: “Following the hearing the presiding judige shall enter an order reciting the stipulations made and the action taken. Such order shall control the subsequent course of the case unless in the discretion of the trial judge the ends of justice require its modification.”

Judge Pless’ pre-trial order is interlocutory, from which an appeal does not lie. The appeal is dismissed, but without prejudice to plaintiff’s exception to the order, and to his rights in accordance with procedure and law in such oases. DeBruhl v. Highway Com., 241 N.C. 616, 86 S.E. 2d 200.

Appeal Dismissed.

Higgins, J., not sitting.