Boney v. Parker
| Decision Date | 16 April 1947 |
| Docket Number | No. 453.,453. |
| Citation | 227 N.C. 350,42 S.E.2d 222 |
| Parties | BONEY et al. v. PARKER et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wake County; C. Everett Thompson, Judge.
Action by N. B. Boney and another, coadministrators of the estate of Lowell N. Douglas, deceased, against Mrs. Mary B. Parker and others, for wrongful death of plaintiffs' decedent as a result of an automobile collision. From a judgment sustaining defendants' demurrer to complaint on ground that there was another action pending between same parties for the same cause as to named defendant and overruling the demurrer as to other defendants, the defendants appeal.
Affirmed.
Defendants' demurrer on the ground that there was another action pending between the same parties for the same cause, was sustained as to the defendant Mary B. Parker, and overruled as to the other defendants.
Defendants excepted and appealed.
Smith, Leach & Anderson, of Raleigh, and Robert C. Wells, of Kenansville, for plaintiffs-appellees.
Rivers D. Johnson, of Warsaw, and L. A. Beasley, of Kenansville, for defendants-appellants.
The defendants by answer interposed a plea in abatement, G.S. § 1-133, and sought dismissal of plaintiffs' action on the ground that there was another suit pending between the same parties for the same cause. Defendants' motion, which was based on the pleadings in this case and the record in the case of Mary B. Parker v. N. B. Boney and John A. Yarborough, administrators of Lowell N. Douglas, pending in the Superior Court of Wayne County, was allowed as to Mary B. Parker, and the action dismissed as to her, and denied as to the other defendants. The defendants' appeal brings the matter here for review.
The pertinent procedural steps leading up to the present controversy and upon which the ruling below was based, may be briefly stated in chronological order as follows: January 12, 1946, a collision on the highway between the automobile owned and driven by Lowell N. Douglas and the motor truck of Mary B. Parker, driven at the time by J. C. Norris, resulted in damage to both vehicles and a personal injury to Lowell N. Douglas from which shortly thereafter he died in a hospital in Wayne County. March 1, 1946, N. B. Boney was appointed administrator of the estate of Lowell N. Douglas by the clerk of the Superior Court of Wayne County, and subsequently John A. Yarborough, a resident of Wake County, was appointed coadministrator of the estate. July 11, 1946, Mary B. Parker instituted suit in Duplin County, where she resided, against the administrators of the estate of Lowell N. Douglas to recover damages for injury to her motor truck alleged to have been caused by the negligence of their intestate. The administrators filed answer denying the allegations of negligence, and set up a counterclaim for damages against Mary B. Parker for wrongful death of their intestate, alleging this was due to the negligence of the servant and agent of Mary B. Parker who was at the time driving the truck for her. Damages were asked for wrongful death, for suffering endured by Lowell N. Douglas, and for injury to his automobile in the total sum of $78,200. Mary B. Parker replied denying the material allegations of the counterclaim. August 20, 1946, by order, on motion of the administrators, the action was removed from Duplin to Wayne County, where it is still pending.
October 2, 1946, the named administrators instituted this action against the defendants Mary B. Parker, G. B. D. Parker, Jr., Sarah Parker Olsen, Hardy R. Parker, L. R. Hagood, and J. C. Norris for damages for wrongful death of Lowell N. Douglas resulting from collision of his automobile with the negligently driven motor truck of Mary B. Parker, and for damages for suffering endured by their intestate and for injury to his automobile, in...
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