Cheshire, J. B., IV

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University of North Carolina School of Law

NORTH CAROLINA LAW REVIEWVolume 19 | Number 1 Article 1212-1-1940Civil Procedure -- Use of Motion to StrikeJ. B. Cheshire IVFollow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationJ. B. Cheshire IV, Civil Procedure -- Use of Motion to Strike, 19 N.C. L. Rev. 55 (1940).Available at: http://scholarship.law.unc.edu/nclr/vol19/iss1/12NOTES AND COMMENTSres judicata practices out of intimate acquaintance with their individualproblems.43GILBERT C. HINE.Civil Procedure-Use of Motion to Strike.If appealed cases afford an accurate criterion, the statutory motionto strike from pleadings is becoming much more prevalent in the NorthCarolina courts. In the last completed volume of the North CarolinaReports, there are five cases raising the point as compared to onlytwenty-five in the previous sixteen volumes. The part of the statutewith which this note is concerned provides in effect that irrelevant orredundant matter may be stricken out on the motion of the aggrievedparty, if made before answer or demurrer, or before extension of timeis granted in which to plead.'In a recent suit against a railroad and its employee for negligentinjuries from the use of firearms in the hands of the employee, the trialcourt, on defendant's motion, struck from the amended complaint alle-gations that the individual defendant was possessed of a nervous andirritable disposition, and of a violent and ungovernable temper. Onappeal the Supreme Court reversed the trial court only as to the ner-vous disposition, saying "Irritability and violent and ungovernable tem-per could hardly be a contributing factor to negligence, while nervous-ness may readily be a concomitant part thereof, and the retaining of aperson equipped with firearms with which to guard the railway stationof which he was in charge, when such person was known to possess anervous disposition, might constitute negligence on the part of the rail-way company."2 In passing it may be said that such a distinction israther difficult to comprehend. The reverse appears nearer the truth.The principal case lays down a general rule that seems quite popularwith the court: "On a motion to strike out, the test of relevancy of apleading is the right of the pleader to present the facts to which theallegation relates in the evidence upon the trial."3 The difficulty of thisrule is in its application. There is no apparent reconcilable or pre-" Note, Res Judicata in Administrative Law (1940) 49 YALE L. J. 1250. Alsosee Culp, Administrative Remedies In the Assessment and Enforcement of StateTaxes (1938) 17 N. C. L. REv. 118, in which a hands-off policy is suggested tothe courts insofar as upsetting expert administrative determinations as to taxliability, thereby relying more heavily on the bodies' expertness.IN. C. CoDE ANN. (Michie, 1939) §537.'Whitlow v. Southern Ry., 217 N. C. 558, 8 S. E. (2d) 809 (1940).' Pemberton v. Greensboro, 203 N. C. 514, 166 S. E. 396 (1932) ; Patterson v.Southern Ry., 214 N. C. 38, 198 S. E. 364 (1938) ; Virginia Trust Co. v. Dunlop,214 N. C. 196, 198 S. E. 645 (1938) ; Duke v. Crippled Childrens' Hospital, 214N. C. 570, 199 S. E. 918 (1938); Wadesboro v. Coxe, 215 N. C. 708, 2 S. E.(2d) 876 (1939); Sayles, Adm'x v. Loftis, 217 N. C. 674, 9 S. E. (2d) 393(1940).1940]NORTH CAROLINA LAW REVIEWdictable consistency in the decisions. On occasion the court will go intoa lengthy discussion of the merits of the particular pleading being at-tacked by the motion. If the conclusion is that it constitutes part of thepleader's cause of action or defense, it will remain because evidence tosupport it may be presented at the trial ;4 otherwise it will be stricken.5In other cases the court has announced. itself in opposition to a policy of"charting the course of the trial in advance", and therefore has refusedto sustain a motion to strike without considering the question of therelevancy of the attacked pleading. The protection afforded the movingparty where this procedure is followed lies in an objection to the evi-dence when presented at the trial.6Why this diametrically opposite treatment? The reason is probablyfounded on very practical considerations. Where the court allows ordisallows the motion after a discussion of the merits of the case, it doesso because it is sure of the ground on whi6h it treads; that is, there isno doubt in the court's mind that the particular pleading is relevant orirrelevant to the suit at hand.7 Or else, in rare cases, the court mightfeel that the pleading is so worded as to make a profound impressionwhen read. to an .easily prejudiced jury, which would be definitelyharmful to the moving party.8 On the other hand, where the courtrefuses to "chart the course of the trial in advance", it would seemthat it is uncertain, at least at the early stage in which such motionarises, whether or not the pleading will be proper.9 Consequently themoving party is left to the adequate remedy of objecting to the evi-dence, if and when it is offered."When made in apt time, it (motion to strike) is not addressed tothe court's discretion, but is made as a matter of right." This rule isfound in numerous decisions.' 0 As contrasted with "discretion", itwould seem that "matter of right" should mean that the moving partyhas a right to have his motion decided on the merits, from which deci-sion either party can appeal. This is true where the motion is allowed,'Scott v. Bryan, 210 N. C. 478, 187 S. E. 756 (1936); Barron v. Cain, 216N. C. 282, 4 S. E. (2d) 618 (1939).'Duke v. Crippled Childrens' Hospital, 214 N. C. 570, 199 S. E. 918 (1938);Whitlow v. Southern Ry., 217 N. C. 558, 8 S. E. (2d) 809 (1940) ; Herndon v.Massey, 217 N. C. 610, 8 S. E. (2d) 914 (1940); cf. Federal Reserve Bank v.Atmore, 200 N. C. 437, 157 S. E. 129 (1931).'Hardy v. Dahl, 209 N. C. 746, 184 S. E. 480 (1936) ; Hildebrand v. SouthernBell Tel. & Tel. Co., 216 N. C. 235, 4 S. E. (2d) 439 (1939)."Cf. Duke v. Crippled Childrens' Hospital, 214 N. C. 570, 199 S. E. 918(1938).8Cf. Patterson v. Southern Ry., 214 N. C 38, 198 S. E. 364 (1938).'Hardy v. Dahl, 209 N. C. 746, 184 S. E. 480 (1936); cf. Hildebrand v.Southern Bell Tel. & Tel. Co., 216 N. C. 235, 4 S. E. (2d) 439 (1939)."0 Federal Reserve Bank v. Atmore, 200 N. C. 437, 157 S. E. 129 (1931);Poovey v. Hickory, 210 N. C. 630. 188 S. E. 78 (1936); Herndon v. Massey,217 N. C. 610, 8 S. E. (2d) 914 (1940); cf. Fayetteville v. Spur Distilling Co.,216 N. C. 596, 5 S. E. (2d) 838 (1939).[VCol. 19NOTES AND COMMENTSfor the Superior Court judge has necessarily made a "merit" decisionin order to have determined that the contested pleading is irrelevant.The injured party may then except and immediately appeal. There isno justifiable escape from this, for he may be entitled to have his lostpleading remain and it would be most unfair to force him, against hiswill, to go to the expense of continuing the trial to its end before heis allowed to raise the point. For if he lost and then established hisright to material pleadings, the trial would have- been in vain. Whendeciding such an appeal, the Supreme Court may determine the meritsof the case, 1 or refuse to chart the course of the trial in advance.12Either method, under these circumstances, will adequately protect theinjured party.The problem, as it relates to appeals, is more difficult of solutionwhere the motion to strike is denied and the contested pleading remains.In this situation, what is the meaning of the court's statement that themotion is made as a "matter of right"? It seems to mean that the courtwill either determine whether or not the pleading is relevant, 13 or willrefuse to chart the course of the trial in advance. 14 When this "chart"rule is used, the only effect is to decide the motion itself by merelypostponing a decision as to the relevancy of the particular pleading.The use of this rule appears to rest entirely in the Supreme Court, inview of its policy of hearing immediate appeals. There is nothing toindicate that any leeway has been given the Superior Court judge inhis invocation of this rule. He apparently is as liable to be reversedwhen he invokes it as when he decides the motion on the merits.Assuming that the North Carolina Court is going to continue itsuse of the "chart" rule, it should grant the Superior Court judge widediscretion in applying it, and allow no appeal from his ruling. Aware-ness of the possibilities of such a procedure may have caused the re-cently expressed doubt of the Supreme Court concerning the right ofimmediate appeal where the motion is denied. 15 Overwhelming factorsargue against such an appeal. Although C. S. 638 allows an appealfrom every judicial order affecting a substantial right, such right isI1 Patterson v. Southern Ry., 214 N. C. 38, 198 S. E. 364 (1938) ; Whitlow v.Southern Ry., 217 N. C. 558, 8 S. E. (2d) 809 (1940) ; cf. Federal Reserve Bankv. Atnore, 200 N. C. 437, 157 S. E. 129 (1931)."2Hildebrand v. Southern Bell Tel. & Tel. Co., 216 N. C. 235, 4 S. E. (2d)439 (1939)."' Duke v. Crippled Childrens' Hospital, 214 N. C. 570, 199 S. E. 918 (1938);Barron v. Cain, 216 N. C. 282, 4 S. E. (2d) 618 (1939); Sayles, Adm'x v.Loftis, 217 N. C. 674, 9 S. E. (2d) 393 (1940).", Pemberton v. Greensboro, 205 N. C. 599, 172 S. E. 196 (1934) ; Hardy v.Dahl, 209 N. C. 746, 184 S. E. 480 (1936); cf. Virginia Trust Co. v. Dunlop,214 N. C. 196, 198 S. E. (2d) 645 (1938)."Virginia Trust Co. v. Dunlop, 214 N. C. 196, 198 S. E. 645 (1938); cf.Scott v. Bryan, 210 N. C. 478, 187 S. E. 756 (1936).1940] 57NORTH CAROLINA LAW REVIEWsufficiently protected by allowing the moving party to object to the evi-dence. The infrequent argument that the reading of the pleadings tothe jury will prejudice them seems, in actuality, rather negligible, forjuries apparently pay little attention to the pleadings when presented.16Also it is possible that evidence may not be presented to support suchallegations. In view of the safeguards to the moving party, it seemsrather unfair to leave the other party without any choice but to submitto the expense of defending such an unnecessary appeal. Since it isapparent that the use of the motion to strike is becoming more fre-quent, and since, as it stands now, the discretion as to charting or notcharting the course of the trial is in the Supreme Court, thus neces-sitating their consideration of such appeals, their work will be burdenedwith deciding an increasing number of questions which are of no ma-terial benefit. To refuse appeal in this situation would obviously rem-edy these problems, and would put the discretion in the Superior Courtjudge where it rightfully belongs.The "law of the case" is that a court, having ruled on a certain ques-tion, will not again hear the case upon the same point.17 To whatextent does this pertain to motions to strike? On appeals, if the motionis allowed, evidence to support the stricken allegations cannot be ad-mitted, as the court has ruled on the merits that the particular pleadingis improper. However, this should not bar such evidence for a sec-ondary purpose, such as impeachment of an adverse witness, for herethere would be no attempt to introduce it in support of the wrongfulallegations. On the other hand, where the court denies the motion onits merits, it seems that the trial judge would be bound to allow theevidence to come in. Where the "chart" rule is invoked, nothing hasbeen decided. Consequently the moving party must prepare to efend,in view of a possible adverse ruling by the trial judge on his objectionto the evidence.Often a party who has suffered an adverse ruling on a motion tostrike may feel that an immediate appeal is unnecessary or undesirable.How should he protect himself so that he may have the privilege ofcontesting the ruling in case he should lose his case and appeal? Ifthe Superior Court judge allows the motion the injured party mustexcept. Logically, an offer of the evidence at the trial should be un-necessary, for in allowing the motion, the judge has, in effect, ruledthat he will not admit the evidence, and consequently any offer of itwould be useless. However, a careful attorney, to show that he isstill relying on his exception and to prevent any question of his having"8 Cf. Poovey v. Hickory, 210 N. C. 630, 188 S. E. 78 (1936); Warren v.Virginia Carolina Joint Stock Land Bank, 214 N. C. 206, 198 S. E. 624 (1938).17MCINTOSH, NORTH CAROLINA PRACTICE AND PROCEDURE (1929) §28.[Vol. 19NOTES AND COMMENTSwaived his right to do so, should make some offer of the evidence thathe would like to prove under the stricken pleadings. Where the motionis denied, the moving party's only remedy is to object to the evidencewhen presented. If it is denied on the merits, the Superior Courtjudge has made his decision to allow the evidence to come in. In thissituation the moving party should except to the denial and then objectto the evidence. If he does not except to the denial he may be con-sidered to have waived his right to object to the evidence by acquiescingin it; while if he fails to object to the evidence, he may, on appeal, beconsidered to have waived his right to his exception to the denial. Ifthe judge denies the motion by invoking the "chart" rule, he is simplydeferring a decision on the question until the evidence is offered. Thusit seems that the moving party would not have to except in order toobject to the evidence. However, in many instances the judge may giveno reason for his denial, and exception should be taken in all such casesto prevent any subsequent contention that the judge's ruling was onthe merits.In the interest of simplicity, and in order to clarify the difficult,and in many cases unnecessary problems that develop from the use ofthe motion to strike, it seems that it would be advantageous from boththe point of view of the court and of the parties litigant, for the courtto lay down the following set rule on motions to strike made in apttime: (1) Where allowed, the aggrieved party may (a) except andappeal immediately, and obtain a decision as to whether or not he maysupport the contested allegations by evidence at the trial, or (b) exceptto the ruling and be allowed to raise the question if the case is subse-quently appealed, provided, at least, that he has preserved his exceptionby offering the evidence at the trial. (2) Where denied, he may notappeal, but must seek his relief by excepting to the ruling and objectingto the evidence when and if it is offered.J. B. CHESHIRE, IV.Contracts-Effect of Second Contract With Defaulter UponRights for Breach of First.An elementary rule of contract law is that a party injured by abreach of contract has a "duty"' to mitigate any damages suffered'Strictly speaking the "duty" to mitigate damages is not a duty at all, notan affirmative obligation. The rule merely sets up a standard for ascertain-ment of damages, recognizing a disability in the injured party to collect avoidabledamages. RaSTATEMENT, CONTRACTS (1932) §336, comment (d); 5 WILILISTON,CONTRACTS (Rev. Ed. 1937) 3795, 3813. In the interests of.brevity the word"duty" is used throughout this note as qualified by this footnote.1940]

Civil Procedure -- Use of Motion to Strike

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Civil Procedure -- Use of Motion to Strike

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