Bost v. Metcalfe

• Decision Date: 21 May 1941
• Docket Number: No. 668.,668.
• Citation: 219 N.C. 607,14 S.E.2d 648
• Court: North Carolina Supreme Court
• Parties: BOST. v. METCALFE et al.

14 S.E.2d 648
219 N.C. 607

BOST.
v.
METCALFE et al.

No. 668.

Supreme Court of North Carolina.

May 21, 1941.

[14 S.E.2d 649]

Appeal from Superior Court, Guilford County; Zeb V. Nettles, Judge.

[14 S.E.2d 650]

Action by R. F. Bost, Jr., against Lawrence Metcalfe, by his guardian ad litem, W. A. Metcalfe, and J. Fred Merritt, for personal injuries, in which defendant Metcalfe filed a cross-action against plaintiff for personal injuries. From a judgment of dismissal as against defendant Merritt, plaintiff appeals.

Affirmed.

The plaintiff instituted this action against the defendant Metcalfe to recover damages for personal injuries sustained when an automobile operated by him collided with another automobile allegedly being operated under the supervision and control of the defendant Metcalfe. The action is based upon allegations of negligence on the part of said defendant.

The defendant answered, denying negligence on his part and setting up a cross action against the plaintiff for damages for personal injuries sustained and expenses incurred, which he alleges were proximately caused by the negligence of the plaintiff.

Plaintiff filed a reply to the counterclaim or cross action of the defendant Metcalfe, denying negligence and alleging that after said defendant sustained personal injuries resulting from the wreck of the two automobiles he employed and was treated by the defendant Merritt, a physician; that the defendant Merritt was guilty of malpractice in that he did not exercise ordinary care and apply the requisite degree of skill and knowledge in treating the defendant, as a result of which the injuries sustained by Metcalfe were materially aggravated; that for so much of the damages as resulted from such malpractice Merritt is primarily liable; and that if plaintiff is liable Merritt is jointly and concurrently liable therefor. He then prays judgment; (1) That in the event the issue of negligence is answered against him the jury be required to assess and determine that portion of the damages sustained by Metcalfe which was proximately caused by and resulted from the malpractice of Dr. Merritt for which plaintiff alleges the physician is primarily liable; (2) that the court make such orders in entering judgment as are necessary to adjust the rights and liabilities as between plaintiff and Merritt; (3) that Merritt be adjudged a joint tortfeasor either in respect to the entire damages or at least as to that portion of the damages caused by his malpractice; and (4) that the court adjust, protect and de-

termine the rights and liabilities existing between the plaintiff and Dr. Merritt with reference to and in connection with the contribution rights and joint liability provisions as contained in C.S. § 618, as amended by Ch. 68, P.L., 1929.

Thereupon the court, on motion of the plaintiff, entered an order making J. Fred Merritt, the physician, a party defendant. Summons, a copy of all the pleadings and order making him a party defendant were served upon Merritt. In due time he appeared and filed a demurrer to the plaintiff's reply for that (1) no sufficient cause of action is alleged against him; (2) he is neither a necessary nor a proper party to said action; and (3) there is a misjoinder of both parties and causes of action, and several causes of action have been improperly united. In his demurrer he sets forth with particularity wherein the pleadings fail to state a cause of action against him or to show that he is a proper or necessary party.

When the cause came on to be heard upon the demurrer, the court sustained the same and entered judgment dismissing the action as against the defendant Merritt. Plaintiff excepted and appealed.

Smith, Wharton & Jordan, of Greensboro, for...