Chambers v. Seabd. Air Line Ry. Co, (No. 419.)

• Citation: 90 S.E. 590
• Case Date: November 22, 1916
• Court: United States State Supreme Court of North Carolina

(172 N.C. 666)
90 S.E. 590

CHAMBERS.
v.
SEABOARD AIR LINE RY. CO.

(No. 419.)

Supreme Court of North Carolina.

Nov. 22, 1916.

Clark, C. J., dissenting.

Appeal from Superior Court, Union County.

Action by Chaney Chambers, administratrix of Steve Chambers, deceased, against the Seaboard Air Line Railway Company. From an order overruling demurrer to the answer, plaintiff excepted and appealed. Appeal dismissed.

The action was brought to recover damages for personal injuries, resulting in the death of plaintiff's intestate, alleged to have been caused by defendant's negligence in running its engine and cars. Defendant, by its answer, denied the alleged negligence and pleaded contributory negligence of the intestate, and further that the guardian of the intestate, and his ward, who was a minor (19 years old) at the time of his death, had settled and compromised any and all claim for damages on account of the negligence of the defendant, if any, for the consideration of $225, then paid by defendant to said guard ian for his ward, and for the same consideration, so paid, they then and there released and discharged defendant "from all claims and causes of action for or by reason of the injuries received by him (Steve Chambers), and especially to his right side, leg, arm, and and head, and all injuries, on or about April 4, 1914, at or near Polkton, N. C, while a switchman in the employ of the Seaboard Air Line Railway." A copy of the release was annexed to the answer. Plaintiff at first replied to the answer, but afterwards withdrew her reply and demurred to the same upon two grounds: (1) Because the guardian of the intestate had no power or authority to compromise and settle his ward's cause of action; and (2) because the release could not operate as a discharge of the cause of action for the wrongful death, as the intestate, at the time of the injury, was actually engaged in interstate commerce and his case is governed by the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1913, §§ 8657-8665]); the action for the injury and the one for the wrongful death being separate and distinct, though they may both be prosecuted by the administrator in a single action for the double wrong. The court overruled the demurrer as to both grounds stated therein, and inquired if plaintiff wished to make reply to the answer; plaintiff answering that she did not, until the ruling of the court had been reviewed and passed upon by the Supreme Court Plaintiff excepted and appealed. It does not appear in the record that any formal judgment was entered upon the overruling of the demurrer and no judgment for costs. The court merely stated that the demurrer was overruled.

Stack & Parker, of Monroe, for appellant.

Frank Armfield, of Monroe, and Cansler & Cansler, of Charlotte, for appellee.

WALKER, J. (after stating the facts as above). We are of the opinion that this appeal is both premature and fragmentary. There is no judgment in the record, and it appears that none was filed. There is only the simple statement that the court overruled the demurrer. This is not a judgment, but merely a ruling of the court or an expression of its opinion that the demurrer was bad. There should have been a judgment upon this ruling, at least for the costs, and it has been so held by this court in a similar case. Rosenthal v. Roberson, 114 N. C. 594, 596, 19 S. E. 667, 668. In that case plaintiff, in deference to an adverse ruling, "took a nonsuit and appealed." This court said that:

"Upon the submission by plaintiff to a nonsuit, judgment should have been entered against him for costs. This was not done. No judgment having been entered below, the appeal must be dismissed. Taylor v. Bostic, 93 N. C. 415, and other cases cited; Clark's Code (2d Ed.) 559. It is true, if it appeared that the omission of the judgment is a mere inadvertence and the ap-

[90 S.E. 591]

pellant has merits, the court would remand the case to supply the judgment, instead of dismissing the appeal. Baum v. Shooting Club, 94 N. C. 217."

In Milling Co. v. Finley, 110 N. C. 411, 15 S. E. 4, "it appeared that defendants submitted to a nonsuit upon their counterclaim, excepted, and appealed, " and the court held that "an appeal did not lie, because it only lies from a judgment, and no judgment of any kind appears in the record." In Milling Co. v. Pinley, supra, the court further said:

"The record states that, upon the intimation of the court, 'the defendants submitted to a nonsuit upon their counterclaim, * * * and appealed.' The appeal was premature, and would not lie till after a final judgment upon the plaintiff's cause of action"—upon the ground, also, that the appeal was fragmentary.

But a case directly in point, upon the proposition that the appeal is fragmentary, is Shelby v. Railway Co., 147 N. C. 537, 61 S. E. 377. That was an action to recover damages for personal injuries alleged to have been caused by the defendant's negligence in running its cars. The defendant denied the alleged negligence and pleaded a release given for the same injuries. The pleadings were substantially like those in the case at bar. The plaintiff, in that case, demurred to the plea setting up the release. The court overruled the demurrer and plaintiff appealed. That is our case exactly. It was there held, and we quote at some length, as the decision completely covers this case:

"The defendant pleaded in its answer two separate and distinct defenses. The plaintiff demurred to one of them, as he had a right to do. Revisal, § 435. The demurrer was overruled, and the [plaintiff] appealed. This is obnoxious to the rule forbidding fragmentary appeals. An appeal from a ruling upon one of several issues will be dismissed. Hines v. Hines, 84 N. C. 122; Arrington v. Arrington. 91 N. C. 301. The plaintiff should have noted his exception and the judge should have proceeded with the trial upon both issues. If both issues, or only the issue as to this defense, were found with the plaintiff, he would not need to * * * review the order overruling the demurrer as to this; but, should he desire to do so, the overruling the demurrer as to this issue can be as well reviewed on appeal from the final judgment. It is true that the plaintiff will have to try this issue, but, aside from the presumption that the judge ruled rightly, it is better practice that the issue raised by the second defense should be tried, even unnecessarily, than that an action should thus be cut in two and hung up in the courts till it is determined, after much delay, on appeal, whether two issues or one should be tried. It is better to try both, and after final verdict and judgment pass upon the validity of...