Bargeon v. Seashore Transp. Co. Inc
| Citation | 147 S.E. 299 |
| Decision Date | 27 March 1929 |
| Docket Number | (No. 211.) |
| Court | North Carolina Supreme Court |
| Parties | BARGEON v. SEASHORE TRANSP. CO., Inc., et al. |
Appeal from Superior Court, Lenoir County; Henry A. Grady, Judge.
Action by H. A. Bargeon against the Seashore Transportation Company, Inc., and the Dover-Southbound Railroad Company. From a judgment sustaining the Railroad Company's demurrer, and dismissing the action as against it, the Transportation Company appeals. Affirmed.
The plaintiff in this action was a passenger in the same bus referred to in the companion case of Vivian v. Seashore Transportation Co. et al. (N. C.) 147 S. E. 298, where the facts are stated in detail.
The transportation company, upon motion, procured an order making the railroad company a party, and summons was duly issued and served. Thereupon the transportation company filed an answer, denying negligence, and alleging that any injury sustained by the plaintiff was proximately caused by the negligence and carelessness of the railroad company, as specifically set out in the answer. No relief, however, against the railroad company was asked by the transportation company.
The railroad company demurred to the complaint, and to the answer of the transportation company, upon the ground that no cause of action was stated in either pleading. The plaintiff filed no amended complaint, and at the November term, 1928, the presiding judge sustained the demurrer and dismissed the action as against the railroad company, from which judgment the transportation company appealed.
Dawson & Jones, of Kinston, for appellant.
Warren & Warren, for appellee Dover-Southbound R. Co.
Can one defendant, sued alone for personal injury, file an answer denying negligence and liability, and then proceed to allege that the injury was due to the specific acts, of negligence of a third party, and thereupon, without asking relief against such third party, have such party brought into the suit?
It is well settled under our system of procedure that, in order to hold a party in court, a cause of action must be alleged against him. If a defendant, against whom a cause of action exists, alleges a cause of action against a codefendant, growing out of the same matter, then all the parties are in court, and the causes must be tried upon their merits. Bowman v. Greensboro, 190 N. C. 611, 130 S. E. 502; Ballinger v. Thomas, 195 N. C. 517, 142 S. E. 761.
The Ballinger Case established two propositions of law: First, that the...
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...that 'a mere defense made by one codefendant is not subject to demurrer by the other defendant * * *. ' Bargeon v. Seashore Transportation Co., 196 N.C. 776, 777, 147 S.E. 299, 300. But an irrelevant allegation by one defendant may be stricken by a co-defendant when prejudicial to the latte......
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