Dobson v. Southern Ry. Co

• Decision Date: 10 December 1901
• Citation: 40 S.E. 42,129 N.C. 289
• Court: North Carolina Supreme Court
• Parties: DOBSON et al v. SOUTHERN RY. CO.

40 S.E. 42

129 N.C. 289

DOBSON et al

v.SOUTHERN RY. CO.

Supreme Court of North Carolina.

Dec. 10, 1901.

JOINDER OF PARTIES—CONTINUANCE—REMOVAL OF CAUSE TO FEDERAL COURT.

1. Under Code, § 183, providing that all persons having an interest in the subject of the action may be joined as plaintiffs, it is proper to permit insurance companies who have paid losses on property destroyed by fire to join in an action by the owners of the property against a railroad company alleged to have caused the fire by its negligence.

2. Under Code, § 400, requiring that issues of fact joined on the pleadings and inquiries of damages shall be tried at the term of the court next ensuing such joinder of issues, it was error to refuse a continuance to a defendant in an action for damages, which had not denied the amount of damages alleged in the original complaint, but had only denied its liability, where additional parties were joined at the trial term, and the complaint amended so as to allege more damages, which the defendant denied in its amended answer, issue having been joined thereon for the first time.

3. An action against a railroad company, whether it is a foreign corporation or a domestic one, cannot be removed to the federal court, where part of the plaintiffs are foreign corporations and part domestic.

Appeal from superior court, McDowell county; Justice, Judge.

Action by Dobson & Whitley and others against the Southern Railway Company. From a judgment in favor of the plaintiffs, the defendant appeals. Reversed.

Geo. F. Bason, for appellant

Busbee & Busbee and Justice & Pless, for appellees.

FURCHES, C. J. The plaintiffs Dobson & Whitley, on and before the 12th day of August, 1900, were the owners of a grist mill in the county of McDowell, and on that day it was destroyed by fire. They had insured this property in three different companies to the amount of $1,800, which amount was paid them by said insurance companies. The plaintiffs Dobson & Whitley commenced this action against the defendant on the 1st day of December, 1900, and in their complaint filed at spring term, 1901 (May 15, 1901), they allege that said property was burned by the negligence of the defendant, and that they were thereby damaged to the amount of $1,995. At the same term the defendant answered the complaint, denying that it burnt the mill, or that it was negligent or that it was liable to the plaintiffs in damages for the loss of their property. But the defendant did not deny the fifth article of plaintiffs' complaint, which fixed the amount of damages at $1,995. The case, as thus constituted, stood for trial at August term of the court; and at August term, upon the motion of the three insurance companies who had paid the plaintiffs the $1,800 insurance money, they were allowed to make themselves parties plaintiff, to amend the complaint, and to allege that the plaintiffs Dobson & Whitley had been damaged $4,900. The defendant objected to the order of the court allowing new parties, to the amendments to the complaint, and especially to the increased damages; but, defendant's objection being overruled, it excepted and answered, denying all the allegations in the amended complaint, and insisted that, as the amended pleadings had materially changed the status of the case, it was not ready for trial, and asked that the case be continued; that, while it had denied the plaintiffs' right to recover, it had never denied but what, if plaintiffs were entitled to recover anything, they were entitled to recover $1,995, as defendant thought plaintiffs' property destroyed by the fire was worth that amount, but it did deny that it was worth $4,900; and, relying on the amount claimed in the complaint as being the extent of plaintiffs' right to recover, it had summoned no witnesses as to damages, and...