Allen v. Salley

• Decision Date: 27 December 1919
• Docket Number: 540.
• Citation: 101 S.E. 545,179 N.C. 147
• Parties: ALLEN ET AL. v. SALLEY.
• Court: North Carolina Supreme Court

101 S.E. 545

179 N.C. 147

ALLEN ET AL. v. SALLEY.

No. 540.

Supreme Court of North Carolina

December 27, 1919

Appeal from Superior Court, Buncombe County; Ray, Judge.

Action by H. E. Allen and others against E. McQueen Salley. From judgment denying defendant's motion to dismiss the action, defendant appeals. Reversed.

This is an action to recover damages as the result of a collision between an automobile truck belonging to the plaintiffs and an automobile belonging to the defendant on Biltmore avenue near Asheville, March 30, 1919. The defendant, prior to the bringing of this action, had brought an action against the plaintiffs in Polk county, where he resided, for damages arising out of the same collision. The summons in that action was served and returned prior to the beginning of this action by the plaintiffs. At the return term of the summons in this action the defendant filed his plea setting up the pendency of the action in Polk, and moved to dismiss this action because of the institution of the prior action pending in Polk between the same parties and in regard to the same subject-matter. The motion to dismiss was denied, and the defendant appealed.

Walter Jones, of Tryon, for appellant.

Edwin S. Hartshorn, of Asheville, for appellees.

CLARK C.J.

The defendant filed a certified copy of the summons, complaint and answer in the action brought by him for exactly the same collision in Polk county. A demurrer would lie if the pendency of the former action appeared on the face of the complaint. Revisal, § 474(3). But Revisal, § 477, provides:

"Objection Not Appearing in the Complaint.--When any of the matters enumerated [above] * * * do not appear on the face of the complaint, the objection may be taken by answer."

The certified copy of the summons, complaint, and answer in the action brought by the defendant in Polk county show identically the same collision as set out in the complaint in this action, and defendant pleads the identity of the transaction. It is so treated by the judge, who says in his judgment that the defendant moved to dismiss this action "on the ground that another action between the same parties and about the same transaction and subject-matter was pending in Polk county at the time of the institution of the above-entitled action and the court, being of the opinion that the defendant is not entitled to have this action dismissed on the grounds alleged," overruled the motion. The briefs of the plaintiff and defendant in this court concede the identity of the cause of action, the plaintiff contending that though the facts show one and the same collision that the causes of action were different because the plaintiffs in this action claim that the defendant was negligent, and the defendant in the prior action instituted by him claimed that the plaintiffs in this action were negligent, but this was a distinction without a difference. The jury are to find the facts and the court instruct as to the law thereon, and, whatever the result, there was but one set of acts and only one occurrence. There can be only one judgment, for plaintiff or for defendant in the case. Revisal, § 563(2). It would be unprecedented to divide this action into two so as to compel the same witnesses to the same transaction to attend trial of the action first begun (in Polk), and then to require the same witnesses to attend trial and testify to the same state of facts in Buncombe. The two juries might give different verdicts, and the judges might give conflicting constructions of the law.

The entire spirit of the Code is to avoid multiplicity of suits and therefore Revisal, § 481(1), authorizes a defendant to plead as a counterclaim any "cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action." This was intended to authorize the claim and counterclaim to be settled in one action, when there is another contract or a matter "arising out of the same contract or transaction," which could not have been pleaded at common law, but it was not intended to divide into two actions and authorize two suits to be brought upon the same contract or transaction, which would be the case here if after the defendant has sued the plaintiffs for the collision the defendants in that case could sue the plaintiff therein for the same collision. In fact, however, the defendant herein has not pleaded a counterclaim, nor did the defendants in the former case. The defendant in this case has pleaded the "pendency of the former action for the same cause," as authorized by Revisal, § 477. The cause is identical for it is on the same acts by the same parties. What the remedy will be and whether the verdict and judgment will be for the plaintiff or the defendant is to be determined in that suit.

At common law, as still is the case, when two men fight, even by consent, either may bring an action for the assault, but it is not held that there may be two actions. Bell v. Hansley, 48 N.C. 131. The language of the headnote is:

"One may recover in an action for assault and battery, although he agreed to fight with his adversary."

In Francis v. Edwards, 77 N.C. 275, Bynum, J., says:

"A counterclaim is a distinct and independent cause of action and when properly stated as such with a prayer for relief, ...