Bullard v. Berry Coal & Oil Co.
| Decision Date | 24 May 1961 |
| Docket Number | No. 602,602 |
| Citation | 119 S.E.2d 910,254 N.C. 756 |
| Court | North Carolina Supreme Court |
| Parties | Cecll G. BULLARD, Plaintiff, v. BERRY COAL & OIL COMPANY, a Corporation, Defendant. |
Sapp & Sapp, Greensboro, for defendant Berry Coal & Oil Co., appellant.
Jordan, Wright, Henson & Nichols, Greensboro, for additional defendant Franklin Life Ins. Co., appellee.
The sole ground of objection asserted in Franklin's demurrer is that the Oil Company may not assert herein its alleged cause of action against Franklin but must do so in a separate action.
Ordinarily, in respect of causes of action defined in G.S. § 1-137 as permissible counterclaims, a defendant may plead his cause of action as a counterclaim in plaintiff's action or institute a separate action thereon. But where the issues raised in the plaintiff's action, if answered in his favor, will necessarily establish facts sufficient to defeat the defendant's cause of action, the defendant must assert his cause of action by way of counterclaim in the plaintiff's action. Hill v. Hill Spinning Co., 244 N.C. 554, 558, 94 S.E.2d 677, and cases cited.
Here, as between plaintiff and the Oil Company, the issues raised in plaintiff's action will determine whose negligence caused the collision. If answered in plaintiff's favor, the Oil Company cannot recover from plaintiff. Hence, the Oil Company's sole remedy in respect of the cause of action it asserts against plaintiff is by way of counterclaim in plaintiff's action. As stated by Clark, C. J., in the oft-cited case of Allen v. Salley, 179 N.C. 147, 150, 101 S.E. 545, 546: 'There is in this case but one cause of action, the collision, and the remedy sought by plaintiffs and that sought by the defendant depends upon identically the same state of facts, and must be settled in one action.'
Franklin is not a plaintiff but a new party. As to Franklin, the Oil Company's cause of action is not a counterclaim. Nor does the Oil Company assert that Franklin is liable as a joint tort-feasor or otherwise for plaintiff's injuries and damage. It bases its right to recover from Franklin solely on account of its liability for plaintiff's negligence under the doctrine of respondeat superior. Franklin is a party (defendant) only in relation to the cause of action alleged by the Oil Company against both plaintiff and Franklin.
The Oil Company, prior to the institution of plaintiff's action, could have sued plaintiff, the alleged agent, or Franklin, the alleged principal, or both, on the cause of action it now asserts. Bullock v. Crouch, 243 N.C. 40, 89 S.E.2d 749. The question here is whether the Oil Company is deprived of its right to sue both in the same action because it was required, under the rule stated above, to sue plaintiff by way of counterclaim.
G.S. § 1-73, cited by appellant, contains this provision: '* * * when a complete determination of the controversy cannot be made without the presence of other parties, the court must cause them to be brought in.' But a complete determination of the controversy as between plaintiff and the Oil Company can be made without the presence of Franklin; and if, prior to the institution of plaintiff's action, the Oil Company could have sued either plaintiff, the alleged agent, or Franklin, the alleged principal, or both, we perceive no reason why the Oil Company is now required to join Franklin as a codefendant to its cause of action against plaintiff. The question is whether the Oil Company, at its election, may do so.
This question arises: If the Oil Company is not permitted to join Franklin as an additional party and as codefendant in relation to the cause of action it asserts herein, to what extent, if any, will the Oil Company be prejudiced?
It should be noted that the Oil Company, in relation to the cause of action it asserts against plaintiff and Franklin, is the plaintiff.
Assuming Franklin is not a party to this action: A verdict and...
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Branch v. Dempsey, 194
...689, 111 S.E.2d 864. The master is entitled to his day in court with full opportunity to defend on every issue. Bullard v. Berry Coal & Oil Co., 254 N.C. 756, 119 S.E.2d 910. To hold that evidence competent to establish liability as against the agent is per se also competent against the mas......
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Wirth v. Bracey, s. 528
...alone, or may bring a single action against both.' Bullock v. Crouch, 243 N.C. 40, 42, 89 S.E.2d 749, 751; Bullard v. Berry Coal & Oil Co., 254 N.C. 756, 758, 119 S.E.2d 910. Prior to the enactment of the Tort Claims Act the Highway Commission, as an agency or instrumentality of the State, ......
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