Canestrino v. Powell

• Decision Date: 30 November 1949
• Docket Number: 449.
• Citation: Canestrino v. Powell, 231 N.C. 190, 56 S.E.2d 566 (N.C. 1949)
• Parties: CANESTRINO v. POWELL et al.
• Court: North Carolina Supreme Court

56 S.E.2d 566

231 N.C. 190

CANESTRINO v. POWELL et al.

No. 449.

Supreme Court of North Carolina

November 30, 1949

For convenience of narration, L.R. Powell, Jr., and Henry W. Anderson, the Receivers of the Seaboard Air Line Railway Company, are called the Receivers; Fred W. Staudt trading and doing business as Staudt's Bakery, is designated as Staudt; and the Seaboard Air Line Railroad Company, which is not to be confused with the Seaboard Air Line Railway Company, is characterized as the Railroad Company.We shall endeavor to promote ease and clarity of understanding by omitting all reference to dates and the other multitudinous parts of the record not directly germane to the precise question raised by the appeal.

Stripped of all non-essentials, the pertinent matters are set forth below.

The plaintiff sued the original defendants, to-wit, the Receivers and Staudt, who were duly served with process, upon a complaint alleging, in substance, that the plaintiff was a passenger on a train, which was being operated by the Receivers in a southerly direction through Wake Forest, North Carolina; that the train was derailed at a public grade crossing in Wake Forest as the outcome of a collision between it and a motor truck, which belonged to Staudt and which was being driven on a mission for Staudt by his regularly employed driver; that the plaintiff suffered substantial personal injuries in the collision and derailment; and that the collision, the ensuing derailment, and the consequent personal injuries of the plaintiff proximately resulted from the combined negligence of the Receivers and Staudt's driver in certain specified particulars.

No occasion arises on the present record for itemizing the specific allegations of negligence made by plaintiff.It will suffice to note that the complaint reflected a purpose on the part of plaintiff to hold the Receivers and Staudt liable to him as joint tort-feasors.

The Receivers demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action against them.They specifically asserted in their demurrer that upon all the facts alleged by the plaintiff in his complaint, it appeared that the negligence charged against Staudt's driver was in law the sole proximate cause of plaintiff's injury.

The hearing upon the demurrer was had before His Honor, Henry A Grady, Emergency Judge, who entered an order sustaining the demurrer on the ground that the plaintiff could not recover against the Receivers "upon the allegations of the complaint" and allowing the plaintiff thirty days in which to amend his complaint.Neither the plaintiff nor Staudt appealed to the Supreme Court from the judgment upon the demurrer, and the plaintiff did not amend his complaint.In consequence, the action was dismissed as to the Receivers upon the expiration of the time allowed the plaintiff for amending.

After these events, Staudt filed an answer, denying actionable negligence on his part, and alleging a cross-action against the Receivers in which he asked that the Receivers be brought in again as defendants and that he be awarded judgment over against them for contribution on the theory that they were joint tort-feasors with him in causing injury to the plaintiff in the event the plaintiff should recover judgment against him for the injury mentioned in the original complaint.Staudt expressly averred that he was entitled to have the Receivers brought in as additional defendants by reason of the matters set out in his answer and cross-action notwithstanding that they had theretofore been dismissed from the action "upon a demurrer to the complaint filed herein by the plaintiff."No necessity exists for detailing the precise allegations of the answer and the cross-action against the Receivers.It is sufficient for the nonce that they state facts sufficient in law to constitute a valid claim on the part of Staudt for contribution from the Receivers under the provisions of G.S. § 1-240 in case of a recovery by the plaintiff against Staudt for the injury involved in the action.

Subsequently the court permitted Staudt to amend his answer so as to set up a cross action against the Railroad Company based on a transaction alleged to have occurred during the pendency of the action.Such cross-action is predicated on the matters asserted in the original answer and the cross-action against the Receivers, and an additional averment reading as follows:

"11.Upon information and belief that on or about August 1, 1946Seaboard Air Line Railroad Company entered into an agreement with L.R. Powell, Jr. and Henry W. Anderson, Receivers of Seaboard Air Line Railway Company, by the terms of which agreement Seaboard Air Line Railroad Company took over the operation of the railroad theretofore operated by said Receivers and assumed the assets and liabilities of said Receivers in connection with the operation of said railroad; that among liabilities for which Seaboard Air Line Railroad Company assumed responsibility was the liability of said Receivers to the plaintiff in this action by reason of the matters alleged in plaintiff's complaint and their liability to defendant, Fred W. Staudt, by reason of the matters alleged in this Further Answer and Defense; that if Fred W. Staudt was guilty of any act of negligence as alleged in the complaint, which is again hereby expressly denied, the negligence of the railroad employees as hereinabove alleged proximately caused and contributed to any injury which plaintiff may have sustained, said negligence operating and concurring in producing said injury; and if this defendant was negligent and is also responsible to the plaintiff, which is again hereby expressly denied, then and in that event Seaboard Air Line Railroad Company under its aforesaid agreement with L.R. Powell, Jr. and Henry W. Anderson, Receivers, is jointly and concurrently liable with this defendant, and this defendant has a right to have said liability and responsbility of Seaboard Air Line Railroad Company determined in this action under and by virtue of the terms and provisions of G.S. § 1-240."

For want of a more descriptive term, the allegations of Staudt's answer asserting the cross-action against the Railroad Company are hereinafter called a cross-complaint.The avowed purpose of such cross-complaint is to enforce against the Railroad Company its alleged promise to the Receivers to discharge their contingent liability for contribution to Staudt in the event Staudt is held liable to plaintiff in this action.

Upon the basis of Staudt's pleading, the court entered orders making the Receivers and the Railroad Company additional defendants and directing that they be served with process in the action.Service was obtained upon the Railroad Company only, and it appeared and filed this demurrer:

"The defendant, Seaboard Air Line Railroad Company, demurs to the answer of defendant, Fred W. Staudt, insofar as the allegations thereof relate to this defendant upon the ground that the said answer does not state facts sufficient to constitute a cause of action against this defendant, for that it appears therefrom that there was no liability on the part of L.R. Powell, Jr. and Henry W. Anderson, Receivers of Seaboard Air Line Railway Company, to the plaintiff in this action or to the defendant, Fred W. Staudt, on or about August 1, 1946, the date alleged as the time when Seaboard Air Line Railroad Company entered into the alleged agreement with L.R. Powell, Jr., and Henry W. Anderson, Receivers of Seaboard Air Line Railway Company, referred to in Section 11 of the answer of Fred W. Staudt.Wherefore, the defendant, Seaboard Air Line Railroad Company, moves that this action be dismissed as to it."

The hearing upon this demurrer was before His Honor, Henry L. Stevens, Jr., at the May Term, 1949, of the Superior Court of Wake County.Judge Stevens entered a judgment overruling the demurrer and allowing the Railroad Company to replead to the cross-complaint against it.The Railroad Company excepted and appealed, assigning the overruling of its demurrer to the answer as error.

A.J. Fletcher, F.T. Dupree, Jr., and Douglass & McMillan, Raleigh, for the defendantFred W. Staudt, doing business and trading as Staudt's Bakery, appellee.

Murray Allen, Raleigh, for the defendantSeaboard Air Line Railroad Company, appellant.

ERVIN Justice.

This appeal presents this problem for solution: Does the cross-complaint of Staudt against the Railroad Company state facts sufficient to constitute a cause of action?Since the sufficiency of the cross-complaint in this respect is challenged by the demurrer of the Railroad Company, it must appear, either expressly or by implication, that the facts necessary to entitle Staudt to the relief sought by him are set forth therein.

The Railroad Company was not an actor in the events resulting in the injury to the plaintiff, and cannot be held liable to Staudt for contribution as a fellow joint tort-feasor under G.S. § 1-240 in case Staudt is adjudged liable to the plaintiff for such injury in this action.Staudt's cross-complaint is bottomed upon another theory.

It first states sufficient facts to establish the liability of the Receivers to him for contribution as fellow tort-feasors under G.S. § 1-240 in case judgment is rendered against him on the plaintiff's complaint.City of Charlotte v Cole,223 N.C. 106, 25 S.E.2d 407;Lackey v. Southern R. Co.,219 N.C. 195, 13 S.E.2d 234;Freeman v. Thompson,216 N.C. 484, 5 S.E.2d 434.It then alleges, in...