Demoret v. Lowery, 93

• Citation: 113 S.E.2d 199,252 N.C. 187
• Decision Date: 16 March 1960
• Docket Number: No. 93,93
• Parties: Eleanor DEMORET v. Lawrence H. LOWERY, Original Defendant, and Casady A. Demoret, Additional Defendant.
• Court: United States State Supreme Court of North Carolina

Page 199

113 S.E.2d 199

252 N.C. 187

Eleanor DEMORET v. Lawrence H. LOWERY, Original Defendant, and Casady A Demoret, Additional Defendant.

No. 93

Supreme Court of North Carolina.

March 16, 1960

Barden, Stith & McCotter, New Bern, for defendant appellant Lawrence H. Lowery.

Williams, Williams & Morris, William C. Morris, Jr., Asheville, for defendant appellee, Casady A. Demoret.

HIGGINS, Justice.

As gathered from the pleadings, this controversy grew out of a rear-end collision on U. S. Highway No. 70 near Old Fort in McDowell County. Involved in the accident were a 1950 Chevrolet owned and driven by Lawrence H. Lowery of McDowell County, and a 1954 Chevrolet owned and driven by Casady A. Demoret of Craven County. The accident occurred on November 24, 1958. Eleanor Demoret, wife of Casady A. Demoret, was a passenger in her husband's vehicle at the time of the accident.

On March 23, 1959, Lowery instituted a civil action against Demoret in the Superior Court of McDowell County to recover property damage which he alleged was caused to his automobile by the negligence of Demoret in ramming it from behind as both were driving west. Demoret filed answer, denied negligence, pleaded contributory negligence, and set up a counterclaim for the damages to his own vehicle which he alleged were caused by the negligence of Lowery in entering the highway from a parking space without warning and without giving Demoret time to avoid the collision. Each driver alleged the other's negligence caused the accident.

On November 16, 1959, Eleanor Demoret instituted the present action in the Superior Court of Craven County against Lowery to recover for personal injuries she suffered in the accident. Lowery filed an answer, denied negligence, and had Demoret brought in as an additional party defendant for purposes of contribution. G.S. § 1-240. Demoret filed an answer denying negligence and set up as a cross action against the original defendant the identical matters which were the subject of his counterclaim in the original defendant's action in McDowell.

The question of law presented is this: Does the cross action here abate on the ground the same cause of action is already pending in the Superior Court of McDowell County? 'If the fact of the pendency of such prior action appears on the face of the complaint, it is ground upon which defendant may demur * * * But if the fact does not so appear, objection may be raised by answer, G.S. § 1-133, and treated as a plea in abatement.' Dwiggins v. Parkway Bus Co., 230 N.C. 234, 52 S.E.2d 892, 893. When there is a prior action pending, a plea in abatement must be sustained to a second cause of action involving the same matters. Seawell v. Purvis, 232 N.C. 194, 59 S.E.2d 572. 'Where an action is instituted, and it appears to the court, by plea, answer or demurrer, that there is another action pending between the same parties, and substantially on the same subject-matter, and that all the material questions and rights...