Dwiggins v. Parkway Bus Co. Inc

• Decision Date: 13 April 1949
• Docket Number: No. 239.,239.
• Citation: 230 N.C. 234,52 S.E.2d 892
• Court: North Carolina Supreme Court
• Parties: DWIGGINS et al. v. PARKWAY BUS CO., Inc.

52 S.E.2d 892

230 N.C. 234

DWIGGINS et al.

v.PARKWAY BUS CO., Inc.

No. 239.

Supreme Court of North Carolina.

April 13, 1949.

Appeal from Superior Court, Davie County; John H. Clements, Judge.

Action by T. P. Dwiggins and W. W. Smith, trading as Smith-Dwiggins Motor Company, against Parkway Bus Company, Inc., for damages to plaintiffs' automobile sustained in a collision with defendant's bus. From the judgment, defendant appeals.

Judgment set aside, and action abated.

Civil action to recover damage to plaintiffs' automobile allegedly resulting from actionable negligence of defendant.

These facts are uncontroverted:

I. On January 6, 1948, an automobile, a Plymouth sedan, property of T. P. Dwiggins and W. W. Smith, trading as SmithDwiggins Motor Company, a partnership engaged in business at Mocksville, Davie County, North Carolina, plaintiffs in this action, operated by said T. P. Dwiggins, came into collision with a passenger bus, property of Parkway Bus Company, a corporation whose principal office and place of business is in Wilkes County, North Carolina, defendant in this action, operated by its driver, J. Ervin Tutterow, resulting in damage to the automobile, and to the bus, and in personal injury to T. P. Dwiggins.

II. On January 14, 1948, Parkway Bus Company, Inc., instituted an action in Superior Court of Wilkes County against T. P. Dwiggins and Smith-Dwiggins Motor Company, Inc., to recover damage done to its bus, in said collision, allegedly resulting from actionable negligence of T. P. Dwiggins, agent and employee of Smith-Dwig-gins Motor Company, a corporation. Summons in this action was duly served on T. P. Dwiggins, individually on January 21, 1948--and a copy of summons, and of complaint were left at the principal place of business of Smith-Dwiggins Motor Company in Mocksville, Davie County, N. C. The plaintiff, in its complaint filed in this action, in Wilkes County, alleged on information and belief that the Smith-Dwiggins Company was a corporation but under date of February 9, 1948, filed an amendment to its complaint as a matter of right, and before time for answering had expired, inserting in lieu of the above allegations that Smith-Dwiggins Motor Company is a partnership composed of W. W. Smith and T. P. Dwiggins; and that T. P. Dwiggins is a partner, agent and employee of said partnership, and on January 6, 1948, he was driving the Plymouth sedan, referred to above, and, at the times alleged, was acting as an agent, servant and employee of said partnership, and in the furtherance of the partnership's business.

III. In the meantime on January 30, 1948, T. P. Dwiggins and W. W. Smith, trading as Smith-Dwiggins Motor Company, a partnership, as plaintiffs, instituted the present action in the Superior Court of Davie County, North Carolina, against Parkway Bus Company, Inc., as defendant, for the purpose of recovering for damage done to their automobile in said collision, allegedly resulting from the actionable negligence of J. Ervin Tutterow, driver of the passenger bus of the Bus Company. Summons in this action was served on February 2, 1948.

IV. Thereafter the Parkway Bus Company, upon special appearance, moved to dismiss the present action for that the pending action in Wilkes County involved the same transaction, etc. This motion was denied on the ground that the relief sought must be taken advantage of by demurrer or answer. And the Parkway Bus Company answered, and pleaded the pendency of the action in Wilkes County in bar of right of the present plaintiff partnership to maintain this action in Davie County, and attached as a part of its answer a copy of its complaint, and amendment to complaint filed in the Wilkes County case. And upon the call of the present case for trial, defendant, Parkway Bus Company, moved that the case be dismissed on the ground of a prior pending suit between the same parties in Wilkes County. The motion was overruled, and defendant excepted. Exception No. 2.

V. The case proceeded to trial on two issues: "1. Was the plaintiff's automobile damaged by the negligence of the defendant as alleged in the complaint?

"2. What amount, if any, is the plaintiff entitled to recover of the defendant?"

The jury answered the first issue "Yes", and the second, "1500.00".

From judgment in favor of plaintiff, on verdict so rendered, defendant appeals to Supreme Court, and assigns error.

A. T. Grant, of Mocksville, and Whicker & Whicker, of North Wilkesboro, for plaintiffs-appellees.

Larry S. Moore, of North Wilkesboro, for defendant-appellant.

WINBORNE, Justice.

Did the court below err in denying motion of defendant Parkway Bus Company, for dismissal of present action on the ground that there is another action pending between the same parties for the same cause? G.S. § 1-127. This is the determinative question on this appeal and the answer is "Yes".

"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 can be determined therein, such action will be dismissed", Faircloth, C. J., in Alexander v. Norwood, 118 N.C. 381, 24 S.E. 119. See also Emry v. Chappell, 148 N.C. 327, 62 S.E. 411; Allen v. Salley, 179 N.C. 147, 101 S.E. 545; J. A. Jones Construction Co. v. Hamlet Ice Co., 190 N.C. 580, 130 S.E. 165; Morrison v. Lewis, 197 N.C. 79, 147 S.E. 729; Underwood v. Dooley, 197 N.C. 100, 147 S.E. 686, 64 A.L. R. 656; Johnson v. Smith, 215 N.C. 322, 1 S.E.2d 834; Thompson v. Virginia & C. S. R. Co., 216 N.C. 554, 6 S.E.2d 38; Moore v. Moore, 224 N.C. 552, 31 S.E.2d 690.

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 to the complaint. G.S. § 1-127. 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. Cook v. Cook, 159 N.C. 46, 47, 74 S.E. 639, 40 L.R.A., N.S., 83, Ann.Cas.l914A, 1137; Allen v. Salley, supra; Thompson v. Virginia & C. S. R. Co, supra.

Indeed, in Alexander v. Norwood, supra, the Court went so far as to say: "The plaintiff has no election to litigate in the one or bring another action. Rogers v. Holt . And the court will ex mero motu dismiss the second action, as the parties, even by consent, cannot give the court jurisdiction. Long v. Jarratt, 94 N.C. 443." To like effect are these cases: Emry v. Chappell, supra; J. A. Jones Construction Co. v. Hamlet Ice Co, supra.

Moreover, it is said that the entire spirit of our Code procedure is to avoid multiplicity of actions. Hence where an action for damages arising by tort from a collision between automobiles has been instituted by one of the parties, he may successfully plead the pendency of this action in bar to a later action brought against him by the opposing party in another county, and have it dismissed. Allen v. Salley, supra; Boney v, Parker, 227 N.C. 350, 42 S.E.2d 222. The remedy open to defendant in the prior action, plaintiff in second action, is by way of counterclaim set up in the prior action.

In such case as in the present instance the causes of action in the respective cases arise out of, and are bottomed on the same collision, --each alleging actionable negligence against the other.

The only question remaining is whether the parties to the action in ...