Gibson v. Gordon

Decision Date25 May 1938
Docket Number667.
Citation197 S.E. 135,213 N.C. 666
PartiesGIBSON v. GORDON.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Guilford County; W. F. Harding, Judge.

Action for negligence by James F. Gibson, by his next friend, John W. Gibson, against Thomas W. Gordon. From a judgment for defendant, plaintiff appeals.

Affirmed.

Under plea of estoppel by judgment in former action, record in former action, which was in existence, was the only evidence admissible to prove its contents.

Civil action to recover damages for alleged actionable negligence.

Plaintiff by his next friend, duly appointed, alleges that he was injured March 7, 1935, as the proximate result of the actionable negligence of the defendant and is thereby damaged.

Defendant denies the material allegations of the complaint, and as further defense pleads in substance that on or about July 29 1935, plaintiff, James F. Gibson, by his duly appointed next friend, Lillie Gibson, instituted an action against the defendant in the Superior Court of Davidson County, North Carolina, to recover damages on the same cause of action alleged in the present action; that plaintiff filed complaint, which with summons was served upon defendant as provided by law; that defendant appeared and filed answer that thereafter plaintiff came into court and represented that he could prosecute the action without a next friend whereupon an order was made making him a party individually that thereupon plaintiff filed a duly verified complaint on October 10, 1935, to which defendant filed answer; that the case came on for hearing at the October Civil Term, 1935, of the Superior Court of said County and was heard before Shaw Judge Presiding, by whom final judgment was signed with the written consent of plaintiff individually, and defendant, through their attorneys of record; that the said judgment was entitled: "James F. Gibson, by his next friend, Mrs. Lillie Gibson, and James F. Gibson, plaintiffs, v. Thomas W. Gordon, defendant," and recites: "it appearing to the court that all matters in controversy have been compromised and settled between the plaintiffs and defendant and that the defendant has agreed to pay the plaintiffs the sum of One Thousand Dollars ($1,000) in full settlement of all matters alleged in the complaint, and the court having heard the evidence and counsel and after thorough investigation by the court the above settlement is found to be just and reasonable and a fair and equitable settlement for the plaintiff, James F. Gibson";-and that all matters in the present action were finally determined and adjudicated in the former. Defendant, thereupon, specifically avers that plaintiff is estopped by the judgment roll and judgment in the said former action, which are pleaded as an estoppel.

In reply plaintiff denied that the alleged judgment is res adjudicata; and alleges that the judgment in the former action in Superior court of Davidson County was purely formal; that the action was "instituted and carried on only to give apparent sanction to the alleged settlement without proper or ample judicial investigation of the facts and circumstances surrounding said matters and things, upon which the right or extent of the alleged recovery is based"; that plaintiff was then mentally incompetent and incapable of consenting to a settlement; that in his deranged condition plaintiff refused to permit his wife as next friend to control the suit, and forced a settlement without consent of next friend; that defendant knew "the plaintiff was seriously and permanently injured and knew that the plaintiff was coercing and forcing plaintiff's wife to allow said alleged settlement therein * *" and knew that the court had no knowledge of such fact, and: "that in...

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