Blades v. Southern Ry. Co.

• Decision Date: 20 December 1940
• Docket Number: 751.
• Citation: 12 S.E.2d 553,218 N.C. 702
• Parties: BLADES v. SOUTHERN RY. CO. et al.
• Court: North Carolina Supreme Court

12 S.E.2d 553

218 N.C. 702

BLADES v. SOUTHERN RY. CO. et al.

No. 751.

Supreme Court of North Carolina

December 20, 1940

R E. Whitehurst, of New Bern, and Fuller, Reade, Umstead &amp Fuller, of Durham, for plaintiff.

Hedrick & Hall, Claude V. Jones, and S. C. Brawley, all of Durham, for defendants.

DEVIN Justice.

Plaintiff instituted her action to recover damages for the wrongful death of her intestate, alleging that this was due to the joint and concurrent negligence of the defendants. The death of her intestate occurred February 21, 1939, and the present action was begun August 21, 1940, but in order to show compliance with the statutory requirement that an action for wrongful death be brought within one year, and to bring herself within the protection of C. S.§ 415, the plaintiff added the following allegation:

"That heretofore, to-wit, under the 1st day of June, 1939, an action was begun in the Superior Court of Durham County entitled Jane Montgomery v. Grace M. Blades, administratrix of the estate of William B. Blades, deceased, Southern Railway Company and the City of Durham, and in said action the plaintiff herein set up a cross-action against the defendants herein, and that upon motion of the defendants herein said cross-action was dismissed by the Supreme Court of North Carolina in an opinion filed on June 8th 1940."

Plaintiff further alleged that the cross-action referred to was for the same cause of action as set out in the complaint in the present action, and that before the institution of this action she had paid all costs taxed against her in the former action.

The defendant's demurrer, on the ground that it appeared on the face of the complaint that this action was not instituted within one year from the death of plaintiff's intestate, was overruled, and the defendants excepted and appealed to this court.

The question presented by the appeal is whether the plaintiff's right to maintain this action for wrongful death, begun more than a year after the death of her intestate, is protected by the provisions of the statute (C.S. § 415) permitting a new action within one year after nonsuit. Does the dismissal of a cross-action set up against her co-defendants in a former suit have the same effect as a nonsuit, and entitle plaintiff to institute a new action against the same defendants, more than twelve months after the death of her intestate and within one year of the date of the dismissal of the cross-action?

While the statutory requirement that suit for wrongful death be brought within one year of such death (C.S. § 160) is not strictly a statute of limitations, but rather a condition annexed to the plaintiff's cause of action (Trull v. Seaboard Air Line R. R., 151 N.C. 545, 66 S.E. 586; McGuire v. Lumber Co., 190 N.C. 806, 131 S.E. 274; George v. Atlanta & C. R. R., 210 N.C. 58, 185 S.E. 431), it has been uniformly held that the provisions of C.S. § 415 apply equally to actions of this nature as to others. Meekins v. Norfolk & S. R. R., 131 N.C. 1, 42 S.E. 333; Carolina Transportation & Distributing Co. v. American Alliance Ins. Co., 214 N.C. 596, 200 S.E. 411.

Section 415 in terms refers to cases of nonsuit, or to those in which the judgment has been reversed or arrested. A nonsuit is the term appropriate to designate the action of the court in ending the case when the complainant fails to proceed to trial, or is unable to prove his case. Cooper v. Crisco, 201 N.C. 739, 161 S.E. 310. In the latter instance it is analogous to a demurrer to the evidence. A dismissal denotes the act of putting an end to the proceeding. It means the cause is sent out of court. 18 C.J. 1145. It was said in Evans v. Josephine Mills, 119 Ga. 448, 46 S.E. 674, that a motion to nonsuit is intended to test the sufficiency of the evidence, while a motion to dismiss is aimed at the fatal defects of the pleadings.

It is alleged in the plaintiff's complaint in this action that her cross-action, set up in the case of Montgomery v. Blades and others, and against her codefendants, the Southern Railway Co. and the City of Durham, was dismissed by the Supreme Court. It appears from an examination of the court's opinion in that case (reported in 217 N.C. 654, 9 S.E.2d 397, 398) that the cross-action against her codefendants was dismissed as not germane to the plaintiff's action in that case. It was said, "In order that a cross-action between defendants may be properly considered as a part of the main action, it must be founded upon or connected with the subject matter in litigation between the plaintiff and the defendants."

In the case of Montgomery v. Blades and others, all the parties were in court. Grace M. Blades, administratrix of William B. Blades, one of the defendants, filed a cross-action against her codefendants setting up the same cause of action as that stated in her complaint herein. Her action against the defendants originated there. Under the statutes prescribing general rules of pleading and under the decisions of this court the right of one defendant in an action to set up a cross-action against another defendant, in proper case, seems to have been well recognized. C.S. § 602; Hulbert v. Douglas, 94 N.C. 128, 129; Baugert v. Blades, 117 N.C. 221, 23 S.E. 179; Bobbitt v. Stanton, 120 N.C. 253, 26 S.E. 817; Dillon v. Raleigh, 124 N.C. 184, 32 S.E. 548; Biggers v. Matthews, 147 N.C. 299, 61 S.E. 55; Coulter v. Wilson, 171 N.C. 537, 88 S.E. 857; Rose v. Warehouse Co., 182 N.C. 107, 108 S.E. 389; Bowman v. City of Greensboro, 190 N.C. 611, 130 S.E. 502; Bargeon v. Transportation Co., 196 N.C. 776, 147 S.E. 299; Powell v. Smith, 216 N.C. 242, 4 S.E.2d 524.

The necessary requirement is that the cross complaint against a codefendant be founded upon or connected with the plaintiff's cause of action. Montgomery v. Blades, 217 N.C. 654, 9 S.E.2d 397. The cross complaint of Grace M. Blades, administratrix, against Southern Railway Company and the City of Durham, was dismissed for failure to meet this requirement. Her cross-action was not germane to that action, had no proper place there, and was dismissed as not cognizable in that action. But the cause of action set out in her cross-action was not disposed of on its merits. Though dismissed, it may not be treated as if it had never had existence. Gaines v. City of New York, 215 N.Y. 533, 109 N.E. 594, L.R.A.1917C, 203, Ann.Cas.1916A, 259.

It seems to have been definitely decided by the decisions of this court that when the first action has been dismissed for want of jurisdiction a new action within time will be protected from the bar of the statute. Bradshaw v Bank, 172 N.C. 632, 90 S.E. 789. In Straus v. Beardsley, 79 N.C. 59, the first action was dismissed for want of jurisdiction, and the new action was begun within a year. The court said, "The judgment dismissing the action is in substance a non-suit and must be attended with same legal consequences." In Harris v. Davenport, 132 N.C. 697, 44 S.E. 406, 407, a special proceeding to sell land for assets was instituted in 1888 by plaintiff, a creditor. In 1893 the proceeding was...