Gadsden v. George H. Crafts & Co.
| Decision Date | 10 April 1918 |
| Docket Number | 295. |
| Citation | 95 S.E. 610 |
| Parties | L.R.A. 1918E,226, 175 N.C. 358 v. GEORGE H. CRAFTS & CO. ET AL. GADSDEN |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, New Hanover County; Devin, Judge.
Action by Robert Gadsden against George H. Crafts & Co. and others. From a judgment for plaintiff, defendants Atlantic Coast Line Railroad and another appeal. New trial as to damages only.
In a suit for injury from defect in scantling sawed nearly in two wherein defendant's evidence tended to show its weakness was caused by knot, amendment of complaint by alleging this fact as additional act of negligence was not improper as setting up new cause of action.
The plaintiff sued the three defendants, Crafts & Co., Atlantic Coast Line Railroad Company, and Seaboard Air Line Railway Company, alleging that he was injured by the negligence of Crafts & Co., by whom he was employed as a servant in building a bridge over the tracks of the two railroad companies on Fourth street in the city of Wilmington, the said Crafts & Co. being the servant or employé of the railroad companies in building the bridge. Crafts & Co. did not appear or plead, and judgment by default was taken against them. The railroad companies answered separately alleging, among other things, that Crafts & Co. were not their servants, but independent contractors, and that they were not liable to the plaintiff for their negligence. The case was before us at a former term. 173 N.C. 418, 92 S.E 174. It appears from the record that at the first trial of the case in the superior court the presiding judge, at the close of the testimony, held, or intimated that he would hold, that Crafts & Co. were independent contractors, and consequently that the railroad companies were not liable to plaintiff for their negligence in injuring him. When this was done plaintiff, instead of trying the case out, submitted to a nonsuit, and judgment was accordingly entered as to the railroad companies, and plaintiff appealed to this court. We reversed the judgment of nonsuit and ordered a new trial. 173 N.C. 418, 92 S.E. 174. When the plaintiff submitted to a nonsuit in the court below at December term, 1916, the trial proceeded against Crafts & Co. for the assessment of damages under the judgment by default and inquiry against them for want of appearance or answer, which had been entered at October term, 1915, and the jury assessed the damages against Crafts & Co. at $1,250, for which judgment was entered against them. The railroad companies took no part in the trial of the case as to the assessment of damages against Crafts & Co. after the judgment of nonsuit against the plaintiffs was entered, but examined and cross-examined witnesses so long as they remained in the case, and before the court had decided that they were not liable to the plaintiff. When the opinion of this court was remitted to the court below a trial as to the railroad companies was had, and resulted in a verdict for the plaintiff, assessing his damages at $1,250. At the trial the plaintiff offered in evidence the record of the judgment against Crafts & Co. for $1,250. The court admitted it and held that it was conclusive on the defendants as to the amount of damages. Defendants (railroad companies) excepted. The court charged upon the third issue relating to the damages as follows:
Now, on the former trial that portion of this case, the amount of damages, or the amount of money sufficient to compensate the plaintiff for the injury sustained upon this occasion, having been ascertained and fixed by a verdict and judgment, the court charges you that would be binding. So the amount arrived at there, to wit, $1,250, has been determined, so far as this case is concerned, and that amount stands as an equivalent for the injury which he sustained upon this occasion and under circumstances which he makes the basis of his action. So that amount has been now found to be $1,250 in money, which is to compensate him once and for all for the injury occasioned to him under the circumstances of this case, and if you have answered the first issue 'Yes,' and the second issue 'No,' your answer to the third issue would be $1,250." Defendants (railroad companies) excepted. There were other exceptions, which are noticed in the opinion of the court. Judgment was entered upon the verdict, and defendants (railroad companies) appealed.
John D Bellamy & Son, of Wilmington, for appellant Seaboard Air Line Ry. Co.
Rountree & Davis, of Wilmington, for appellant Atlantic Coast Line R. Co.
E. K. Bryan and A. G. Ricaud, both of Wilmington, for appellee.
WALKER, J. (after stating the facts as above).
The plaintiff alleged that his injury was caused by a defect in one of the scantlings used in constructing the bridge it having been sawed nearly in two, so as to weaken it and diminish its support of the trough, in which he was mixing material, and the platform, upon which he stood to perform his work. The defendants' evidence tended to show that the weakness of the scantling was caused by a knot in it. Thereupon plaintiff requested that he be allowed to amend his complaint by alleging this fact as an additional act of negligence. The court permitted the complaint to be amended, as indicated, and, we think, properly so. The cause of action was the negligence in having a weak plank which was insufficient to support the heavy material placed upon it. The amendment was not the statement of a new cause of action, so as to be barred by the statute of limitations, which the defendants proposed to plead, but merely a more accurate statement of that originally pleaded. We said in Simpson v. Lumber Co., 133 N.C. 95, 45 S.E. 469:
--citing numerous cases, and among them Smith v. Bogenschutz, 19 S.W. (Ky.) 667, where it was held that a complaint which alleged that a certain injury caused by the overflow of molten iron from a ladle in which it was being carried was due to the jostling of the carriers in a narrow passway could be amended so as to allege that the overflow was due to a defect in the ladle, without introducing any different cause of action. See, also, Steeley v. Lumber Co., 165 N.C. 27, 80 S.E. 963; Deligny v. Furniture Co., 170 N.C. 189, 86 S.E. 980; Johnson v. Telegraph Co., 171 N.C. 130, 87 S.E. 993. Such an amendment relates back to the commencement of the action (Lefler v. Lane, 170 N.C. 181, 86 S.E. 1022), and therefore prevents the bar of the statute if the action was originally brought in time. This exception is overruled.
The real question involved is whether the railroad companies are conclusively bound as to the damages by the judgment against Crafts & Co. We are of the opinion that they are not. 24 A. & E. Enc. of Law (2d Ed.) p. 747. Id p. 752.
In all the cases cited by the learned counsel of the plaintiff, the first judgment was taken against a party who was either expressly or impliedly entitled to be indemnified by the party against whom the second suit is brought, and who had notice of the first suit and a fair opportunity to defend the same with the right of appeal. This was so in Lovejoy v Murray, 3 Wall. 1, at page 19, 18 L.Ed. 129, upon which he mainly relies, and very much so, because there the plaintiff had paid a judgment for damages recovered for his committing a trespass which the defendants had expressly directed him to commit, and had indemnified him against any loss resulting from it; and, further, the sheriff, who had committed the trespass, and was indemnified against loss, with a just appreciation of their relations in the transaction, called upon Lovejoy and others, defendants below, when he was sued for the trespass, to come in and defend the action in his behalf, and they did so. It was held that the effect of giving the bond was to make Lovejoy and his codefendants principals in the trespass, and that so far as the action of the sheriff after that was a wrong, it was directed by them, and was for their benefit, and that they were defending their own acts, although the...
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