Winborne, J.
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,
167 N. C., 417, 83 S. E., 553;
Hoke v. Glenn,
167 N. C., 594, 83 S. E., 807.
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,
198 N. C., 596, 152 S. E., 794;
Bank v. Atmore,
200 N. C., 437, 157 S. E., 129;
Patterson v. R. R.,
214 N. C., 38, 198 S. E., 364.
In
Pemberton v. Greensboro,
203 N. C., 514, 166 S. E., 396, this Court said: “It is readily conceded that nothing ought to be in a complaint, or remain there over objection,'which is not competent to be shown on the hearing. C. S., 506; 21 R. C. L., 452.” This principle as stated has been quoted and paraphrased in numerous more recent decisions.
Patterson v. R. R., supra; Trust Co. v. Dunlop,
214 N. C., 196, 198 S. E., 645;
Duke v. Children’s Commission,
214 N. C., 570, 199 S. E., 918;
Wadesboro v. Coxe,
215 N. C., 708, 2 S. E. (2d), 876;
Hildebrand v. Tel. Co.,
216 N. C., 235, 4 S. E. (2d), 439.
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.,
157 N. C., 331;
Luttrell v. Hardin,
193 N. C., 266 (269), and cases there cited.
Scott v. Bryan,
210 N. C., 478, and cases there cited. By the same token that evidence that the defendant is insured in a casualty company is incompetent, evidence that The defendant has made special arrangements to pay any and all judgments that might be rendered against it on account of its negligence or the negligence of its servants and agents’ is incompetent— both are 'entirely foreign to the issues raised by the pleadings.’
Lytton v. Mfg. Co., supra,
and other cases cited.”
See, also,
Revis v. Asheville,
207 N. C., 237, 176 S. E., 738, where the ruling of the court below in striking out allegations in reply of plaintiff to the effect that defendant carried accident liability insurance was affirmed on appeal to this Court.
However, the attorney for plaintiff in brief filed in this Court makes these two contentions: (1) That the allegations stricken from plaintiff’s
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,
212 N. C., 472, 193 S. E., 826, that, since deputies sheriff are not employees of the sheriff within the meaning of the North Carolina Workmen’s Compensation Act, the fact that a sheriff purchases insurance to cover his compensation liability does not have the effect of enlarging or extending the language of the act so as to cover such deputies sheriff.
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; 10 Am. Jur., 701, Charities Section 152. See Annotations: 42 A. L. R., 971; 62 A. L. R., 724; 67 A. L. R., 1112, and 109 A. L. R., 1199.
Enman v. Trustees of Boston University
(Mass.), 170 N. E., 43;
McKoy v. Morgan Memorial Co-Op. Industries and Stores, Inc.
(Mass.), 272 Mass., 121, 172 N. E., 68;
Levy v. Superior Court
(Cal.), 239 P., 1100;
Stonaker v. Big Sisters Hospital
(Cal.), 2 P. (2d), 520;
Williams v. Church Home,
223 Ky., 355, 3 S. W. (2d), 753; 62 A. L. R., 721;
Mississippi Baptist Hospital v. Moore
(Miss.), 126 So., 465; 67 A. L. R., 1106;
Greatrex v. Hospital
(Mich.), 261 Mich., 327, 246 N. W., 137; 86 A. L. R., 487.
In fact, in
McLeod v. St. Thomas Hospital
(1936), 170 Tenn., 423, 95 S. W. (2d), 917, the Supreme Court of Tennessee adhered to the above rule. However, in the case of
Vanderbilt University v. Henderson,
127 S. W. (2d), 284,
certiorari
denied by Supreme Court 1 April, 1939, upon which plaintiff here relies, the Court of Appeals of Tennessee said: “It is generally held that a charitable institution is not liable for the negligence of its agents and servants. . . . It is likewise held that the rule of nonliability of a charitable institution is not changed by the reason of the fact that it carries liability insurance to protect it against liability which the law imposes upon it.
McLeod v. St. Thomas Hospital,
170 Tenn., 423, 427, 95 S. W. (2d), 917, 918, and cases there cited:
Greatrex v. Evangelical Deaconess Hospital,
261 Mich., 327, 246 N. W., 137, 86 A. L. R., 487;
McKoy v. Morgan Memorial Co-Op. Industries and Stores,
272 Mass., 121, 172 N. E., 68.
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Winborne, J.
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,
167 N. C., 417, 83 S. E., 553;
Hoke v. Glenn,
167 N. C., 594, 83 S. E., 807.
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,
198 N. C., 596, 152 S. E., 794;
Bank v. Atmore,
200 N. C., 437, 157 S. E., 129;
Patterson v. R. R.,
214 N. C., 38, 198 S. E., 364.
In
Pemberton v. Greensboro,
203 N. C., 514, 166 S. E., 396, this Court said: “It is readily conceded that nothing ought to be in a complaint, or remain there over objection,'which is not competent to be shown on the hearing. C. S., 506; 21 R. C. L., 452.” This principle as stated has been quoted and paraphrased in numerous more recent decisions.
Patterson v. R. R., supra; Trust Co. v. Dunlop,
214 N. C., 196, 198 S. E., 645;
Duke v. Children’s Commission,
214 N. C., 570, 199 S. E., 918;
Wadesboro v. Coxe,
215 N. C., 708, 2 S. E. (2d), 876;
Hildebrand v. Tel. Co.,
216 N. C., 235, 4 S. E. (2d), 439.
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.,
157 N. C., 331;
Luttrell v. Hardin,
193 N. C., 266 (269), and cases there cited.
Scott v. Bryan,
210 N. C., 478, and cases there cited. By the same token that evidence that the defendant is insured in a casualty company is incompetent, evidence that The defendant has made special arrangements to pay any and all judgments that might be rendered against it on account of its negligence or the negligence of its servants and agents’ is incompetent— both are 'entirely foreign to the issues raised by the pleadings.’
Lytton v. Mfg. Co., supra,
and other cases cited.”
See, also,
Revis v. Asheville,
207 N. C., 237, 176 S. E., 738, where the ruling of the court below in striking out allegations in reply of plaintiff to the effect that defendant carried accident liability insurance was affirmed on appeal to this Court.
However, the attorney for plaintiff in brief filed in this Court makes these two contentions: (1) That the allegations stricken from plaintiff’s
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,
212 N. C., 472, 193 S. E., 826, that, since deputies sheriff are not employees of the sheriff within the meaning of the North Carolina Workmen’s Compensation Act, the fact that a sheriff purchases insurance to cover his compensation liability does not have the effect of enlarging or extending the language of the act so as to cover such deputies sheriff.
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; 10 Am. Jur., 701, Charities Section 152. See Annotations: 42 A. L. R., 971; 62 A. L. R., 724; 67 A. L. R., 1112, and 109 A. L. R., 1199.
Enman v. Trustees of Boston University
(Mass.), 170 N. E., 43;
McKoy v. Morgan Memorial Co-Op. Industries and Stores, Inc.
(Mass.), 272 Mass., 121, 172 N. E., 68;
Levy v. Superior Court
(Cal.), 239 P., 1100;
Stonaker v. Big Sisters Hospital
(Cal.), 2 P. (2d), 520;
Williams v. Church Home,
223 Ky., 355, 3 S. W. (2d), 753; 62 A. L. R., 721;
Mississippi Baptist Hospital v. Moore
(Miss.), 126 So., 465; 67 A. L. R., 1106;
Greatrex v. Hospital
(Mich.), 261 Mich., 327, 246 N. W., 137; 86 A. L. R., 487.
In fact, in
McLeod v. St. Thomas Hospital
(1936), 170 Tenn., 423, 95 S. W. (2d), 917, the Supreme Court of Tennessee adhered to the above rule. However, in the case of
Vanderbilt University v. Henderson,
127 S. W. (2d), 284,
certiorari
denied by Supreme Court 1 April, 1939, upon which plaintiff here relies, the Court of Appeals of Tennessee said: “It is generally held that a charitable institution is not liable for the negligence of its agents and servants. . . . It is likewise held that the rule of nonliability of a charitable institution is not changed by the reason of the fact that it carries liability insurance to protect it against liability which the law imposes upon it.
McLeod v. St. Thomas Hospital,
170 Tenn., 423, 427, 95 S. W. (2d), 917, 918, and cases there cited:
Greatrex v. Evangelical Deaconess Hospital,
261 Mich., 327, 246 N. W., 137, 86 A. L. R., 487;
McKoy v. Morgan Memorial Co-Op. Industries and Stores,
272 Mass., 121, 172 N. E., 68. But we think that in this State this rule of nonliability extends no further than the protection of the trust property of the charitable institution from being diverted from the purposes of the charity to the satisfaction of a tort liability.”
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.,
180 N. C., 74, 104 S. E., 82. The factual situation there is, however, distinguishable from that here. There, the defendant having denied the allegation that plaintiff’s intestate, while employed by the defendant, came to his death by negligence of defendant, and speaking to defendant’s objection .to admission of evidence tending to show that defendant had taken out and held indemnity insurance in reference to employees engaged in work, and referring to
Clark v. Bonsal,
157 N. C., 270, 72 S. E., 954, relied upon by defendant, the Court said: "It is true that in
Clark v. Bonsal, supra,
the Court decided that an injured employee could not maintain an action for negligent injury against the insurance company on an indemnity policy as ordinarily drawn, taken out, and held by the employer for his own protection. Applying the principle, it has been held in several such cases that the existence and contents of such a policy is not, ordinarily, relevant on the question of damages, or on the issue as to negligence, but, in the present case, the defendant was endeavoring to maintain the position that it was not then operating the plant, and the intestate, at the time of the occurrence, was not in their employment. And the fact that the company had taken out and then held indemnity insurance for injuries to their employees was clearly relevant in that issue. The court was careful to restrict the evidence to the purpose indicated, and the exception must be overruled.”
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,
197 N. C., 41, 147 S. E., 672.
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
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.
ClaRicsoN, J., took no part in the consideration or decision of this case.