Campbell v. Washington Light & Power Co.

• Decision Date: 16 September 1914
• Docket Number: 32.
• Citation: 82 S.E. 842,166 N.C. 488
• Parties: CAMPBELL v. WASHINGTON LIGHT & POWER CO.
• Court: North Carolina Supreme Court

82 S.E. 842

166 N.C. 488

CAMPBELL v. WASHINGTON LIGHT & POWER CO.

No. 32.

Supreme Court of North Carolina

September 16, 1914

Appeal from Superior Court, Beaufort County; Ferguson, Judge.

Action by J. S. Campbell, in behalf of himself and as next friend in behalf of his son, James Campbell, a minor, against the Washington Light & Power Company. At the hearing on a demurrer for misjoinder of parties and causes of action, J S. Campbell, individually, was permitted to withdraw, and the case ordered to proceed, and defendant appeals. No error.

This action was brought by the plaintiff, J. S. Campbell, in behalf of himself and, as next friend, in behalf of his son James Campbell, a minor, to recover damages for supplying impure water to the said minor, whereby he became ill with typhoid fever, causing him great physical and mental suffering, and whereby the other plaintiff, his father, was put to great expense in taking care of him and effecting his cure, lost the benefit of his services, and suffered great mental anguish on account of his sickness. Defendant demurred upon the ground of a misjoinder of parties and causes of action. At the hearing upon the demurrer, the court, at the request of plaintiffs, permitted J. S. Campbell, suing in his individual capacity, to withdraw, as a party, from the action, and ordered the case to proceed as to the other plaintiff, James Campbell, by his next friend, J. S Campbell, with leave to replead, if he desired to do so. Defendant excepted and appealed.

Small, MacLean, Bragaw & Rodman, of Washington, for appellant.

Daniel & Warren, of Washington, and Manning & Kitchin, of Raleigh, for appellee.

WALKER J. (after stating the facts as above).

The defendant contends that there was a misjoinder of parties and causes of action, and in support of its contention relies on the following authorities: Cooper v. Express Co., 165 N.C. 538, 81 S.E. 743; Mitchell v. Mitchell, 96 N.C. 14, 1 S.E. 648; Cromartie v. Parker, 121 N.C. 198, 28 S.E. 297; Morton v. Telegraph Co., 130 N.C. 299, 41 S.E. 484; Thigpen v. Cotton Mills, 151 N.C. 97, 65 S.E. 750. It may be conceded that there was a misjoinder of parties and causes of action, and Thigpen v. Cotton Mills, supra, seems to be "on all fours" with this case in that respect, but this concession does not justify the conclusion that the court erred in permitting the withdrawal of the father, as a party, and allowing the action to proceed further in the name of the son alone, as plaintiff. It would not have been proper to divide the action into two, one in the name of the father and the other in the name of the son, for a division is authorized only where "the causes of action alone are distinct," as said by the Chief Justice in Cooper v. Express Co., supra, where the facts were similar. But this is not a division of the action, allowing each to proceed by separate action in his own name, but a retirement by one plaintiff, leaving the action to be prosecuted in the name of the other, as his action, with proper amendment of the pleadings for that purpose. It is provided in Revisal, § 507, that:

"The judge or court may, before and after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case."

It was held in Jarrett v. Gibbs, 107 N.C. 303, 12 S.E. 272, construing the corresponding section in the Code (section 273), that:

"The motion of the plaintiff Fannie E. Murphy to be allowed to withdraw and to amend the process and pleadings by striking out her name, was within the power and rested within the discretion of the court."

This left the other party, Jarrett, as the sole plaintiff, with the cause of action belonging to him; the other party and his cause of action having been eliminated by the permission of the court. That is our case. This court also ruled in that case that the amendment could have been ordered, in the discretion of the judge below, even if its legal effect had been to substitute one plaintiff for another, citing, for this proposition, Reynolds v. Smathers, 87 N.C. 24 which held that an amendment allowing a change of plaintiffs is allowable. Defendant could not be hurt by the amendment, as it asked for no affirmative relief, but is entitled to its costs. Gatewood v. Leak, 99...