Godfrey v. Tidewater Power Co

• Decision Date: 22 November 1944
• Docket Number: No. 523.,523.
• Citation: 224 N.C. 657,32 S.E.2d 27
• Court: North Carolina Supreme Court
• Parties: GODFREY. v. TIDEWATER POWER CO. et al.

32 S.E.2d 27

224 N.C. 657

GODFREY.

v.TIDEWATER POWER CO. et al.

No. 523.

Supreme Court of North Carolina.

Nov. 22, 1944.

Appeal from Superior Court, Mecklenburg County; Wm. H. Bobbitt, Judge.

Action by Mrs. Jessie M. Godfrey, administratrix of Frank Wilson Godfrey, deceased, against the Tidewater Power Company and others for wrongful death, wherein named defendant made the City of New Bern a party defendant and filed a cross-action against the city for contribution as a joint tort-feasor if the power company should be held liable. From a judgment denying the city's motion for removal of the action to Craven County, the City of New Bern appeals.

Reversed.

Civil action for recovery of damages for alleged wrongful death, G.S. § 28-173, formerly C.S. § 160, to which action the city of New Bern, a municipal corporation, was made a party defendant upon motion of defendant, Power Company, under G.S. § 1-240, formerly C.S. § 618, as amended by Public Laws 1929, Chapter 68, and on its alleged cross-action for contribution by the said city of New Bern as a joint tort-feasor in case it, the Power Company, be held liable. See opinion former appeal 223 N.C. 637, 27 S.E.2d 736.

Pursuant thereto the city of New Bern, being served with summons, made a motion in apt time, G.S. § 1-83, before the clerk of Superior Court, G.S. § 1-583, for removal of the action from the Superior Court of Mecklenburg County to the Superior Court of Craven County, North Carolina, for trial, as a matter of right.

When this motion for removal as a matter of right came on for hearing before the judge of the Superior Court to whom the city of New Bern appealed from adverse ruling of the clerk of the Superior Court, G.S. § 1-583, the judge found facts substantially these:

That the plaintiff is the duly appointed, qualified and acting administratrix of the estate of Frank Wilson Godfrey, deceased, under appointment by the clerk of the Superior Court of Mecklenburg County, North Carolina, where the estate is being administered under the laws of the State of North Carolina; that at the time of his death, and for many years prior thereto, plaintiff's intestate was a resident and citizen of Mecklenburg County, North Carolina, as was the plaintiff, Mrs. Jessie M. Godfrey, at the time of the institution of this action, and now is; that the intestate of plaintiff was killed on 10 June, 1942, in Craven County, North Carolina; that this action was instituted, and summons was issued in the Superior Court of Mecklenburg County on 28 April, 1943, against defendant Tidewater Power Company, a corporation organized and existing according to law, and C. B. Bartling and Ralph Applewhite, upon whom the summons was duly served 29 April, 1943; that the answer, cross-action and motion of defendant, Tidewater Power Company, to make the city of New Bern a party defendant were filed on 28 July, 1943; that before its time for answering expired, and in apt time, the city of New Bern, a municipal corporation, in Craven County, North Carolina, filed motion to remove the action to Craven County as a matter of right; and that the acts of negligence alleged in the complaint and in the cross-action are alleged to have occurred in said Craven County.

Upon these facts judgment was entered denying the motion for removal and the city of New Bern appeals therefrom to the Supreme Court and assigns error.

G. T. Carswell and Helms & Mulliss, all of Charlotte, for plaintiff appellee.

E. McA. Currie, of Charlotte, and William Dunn and R. E. Whitchurst, both of New Bern, for defendant appellant.

WINBORNE, Justice.

Is the city of New Bern, a municipal corporation, located in Craven County, where the plaintiff's alleged cause of action arose, entitled as a matter of right to have the action removed from Mecklenburg County, where plaintiff resides, to Craven County for trial, when the plaintiff makes no allegation and seeks no relief against the city, and it is brought into the action as a party defendant on motion and cross action of an original defendant, Tidewater Power Company, for contribution as a joint tort feasor in the event it, the Power Company, be held liable to plaintiff? The court below did not think so. We are of opinion, however, that the decisions of this Court construing the statutes on venue, now General Statutes 1 Civil Procedure, Subchapter IV, Article 7, direct an affirmative answer.

At the outset it is appropriate to note that this chapter on venue is subdivided into numerous sections, including G.S. § 1-77, prescribing the place of trial for actions in many situations, and then in Section G.S. § 1-82, formerly C.S. § 469, Rev. § 424, upon which plaintiff relies, it is provided that: "In all other cases the action must be tried in the county in which the plaintiffs or the defendants, or any of them, reside at its commencement." And in the section G.S. § 1-77(2), formerly C.S. § 464(2), Rev. § 420(2), upon which defendant, City of New Bern, relies, it is provided that actions "against a public officer or person especially appointed to execute his duties, for an act done by him by virtue of his office; or against a person who by his command or in his aid does anything touching the duties of such officer" "must be tried in the county where the cause, or some part thereof, arose, subject to the power of the court to change the place of trial, in the cases provided by law." Thus it is apparent from the wording of these sections that G.S. § 1-77 relates to particular cases, and that G.S. § 1-82 is intended to cover all cases for which provision is not otherwise made and it is, therefore, general in intent. Hence, in the event of conflict the former expressing a particular intention will be taken as an excep-tion to the general provision. "It is an established canon of construction that where there are two provisions in a statute, one of which is special or particular, and certainly includes the matter in hand, and the other general, which, if standing alone, would include the same matter and thus conflict with the particular provision, the special will be taken as intended to constitute an exception to the general provision, as the General Assembly is not to be presumed to have intended a conflict"--Stacy, C. J., in Re Steelman, 219 N.C 306, 13 S.E.2d 544, 547, citing Nance v. Southern Ry., 149 N.C. 366, 63 S.E. 116, among other cases.

Moreover, the decisions of this Court are uniform in holding that since a municipality may act only through its officers and agents, an action against a municipality is an action against "a public officer" within the meaning of the provisions of G.S. § 1-77(2), formerly C.S. § 464(2), Rev. § 420(2), and that a proper venue against a municipality is the county where the cause of action, or some...