De Hoff v. Black
| Decision Date | 20 June 1934 |
| Docket Number | 567. |
| Citation | 175 S.E. 179,206 N.C. 687 |
| Parties | DE HOFF et al. v. BLACK et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Surry County; Shaw, Emergency Judge.
Action by B. E. De Hoff and others against C. G. Black and others. From a judgment on the verdict, defendants appeal.
New trial ordered.
Civil action to recover damages for alleged negligent injury to plaintiff's truck.
Summons and copy of complaint were served on the defendants April 4 1931.
It is alleged in the complaint that on the morning of March 31 1931, on Highway No. 1, near South Hill, Va., a truck owned by the defendant C. G. Black, operated by the defendant K. & S. Trucking Company, and driven by C. W. Silver, who was also accompanied by Hunter Black, brother of the owner of the truck, negligently ran into, and completely demolished, a truck owned by the plaintiff and operated at the time by its employee, F. M. Akins; and that both defendants are liable to plaintiff for the damages sustained.
On May 25, 1931, judgment by default and inquiry was entered against the defendants for want of an answer; motion thereafter to set it aside for excusable neglect overruled; and at the January term, 1934, said inquiry was executed before a jury the damages being assessed at $400.
Upon the execution of the inquiry, the defendants sought to show how the collision occurred; that it was really due to the conduct of F. M. Akins, driver of plaintiff's truck; and that the defendant K. & S. Trucking Company was in no way connected with C. G. Black's truck as lessee or otherwise. All this proffered testimony was excluded as irrelevant and immaterial on the issue of damages. The appeal presents the question of the competency of this evidence.
From judgment on the verdict, the defendants appeal, assigning errors.
H. O. Woltz, of Mt. Airy, and R. A. Freeman, of Dobson, for appellants.
W. M. Allen, of Elkin, and A. D. Folger, of Dobson, for appellee.
What is the effect of a judgment by default and inquiry? The answer is threefold:
(1) It establishes a right of action of the kind properly pleaded in the complaint. Bowie v. Tucker, 206 N.C. 56, 173 S.E. 28; Strickland v. Shearon, 193 N.C. 599, 137 S.E. 803; Mitchell v. Ahoskie, 190 N.C. 235, 129 S.E. 626; Beard v. Sovereign Lodge, 184 N.C. 154, 113 S.E. 661; Armstrong v. Asbury, 170 N.C. 160, 86 S.E. 1038; Allen v. McPherson, 168 N.C. 435, 84 S.E. 766; Banks v. Mfg. Co., 108 N.C. 282, 12 S.E. 741; 34 C.J. 173-175. See, also, dissenting opinion of Connor, J., in Junge v. MacKnight, 135 N.C. 105, 47 S.E. 452, later declared to be the law on petition to rehear, 137 N.C. 285, 49 S.E. 474.
(2) It determines the right of the plaintiff to recover at least nominal damages and costs. Foster v. Hyman, 197 N.C. 189, 148 S.E. 36; Hill v. Hotel Co., 188 N.C. 586, 125 S.E. 266; Blow v. Joyner, 156 N.C. 140, 72 S.E. 319, 320; Farmer-Cole Plumbing Co. v. Hotel Co., 168 N.C. 577, 84 S.E. 1008; Patrick v. Dunn, 162 N.C. 19, 77 S.E. 995.
(3) It precludes the defendant from offering any evidence, on the execution of the inquiry, to show that the plaintiff has no right of action. Mitchell v. Express Co., 178 N.C. 235, 100 S.E. 307; Hollifield v. Tel. Co., 172 N.C. 714, 90 S.E. 996; Lee v. Knapp, 90 N.C. 171; Garrard v. Dollar, 49 N.C. 176, 67 Am. Dec. 271; 15 R. C. L. 667.
A judgment by default final as authorized by C. S. § 595, Pub. Laws 1929, c. 66, is different in effect and result from a judgment by default and inquiry as authorized by C. S. § 596. Gillam v. Cherry, 192 N.C. 195, 134 S.E. 423. The former establishes the allegations of the complaint, and concludes by way of estoppel, while the latter "established a right of action in plaintiff of the kind stated in the complaint" (Blow v. Joyner, supra), the precise character and extent of which remain to be determined by a hearing in damages and final judgment thereon. Osborn v. Leach, 133 N.C. 427, 45 S.E. 783; 2 Black on Judgments, § 697.
Thus, in Stockton v. Mining Co., 144 N.C. 595, 57 S.E. 335, it was said that a judgment by default and inquiry, in an action for fraud and deceit, did not establish the truthfulness of the allegations of fraud, which still remained to be proved, but merely the fact that the plaintiff was entitled to recover at least nominal damages and costs on the cause of action set out in the complaint and foreclosed a hearing only upon the existence of the right of action.
Likewise in Blow v. Joyner, supra, the following discriminating statement appears: . ...
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...the plaintiff became entitled as a matter of law to recover on the cause of action set out in his complaint. G.S. § 1-212; DeHoff v. Black, 206 N.C. 687, 175 S.E. 179; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d 67. Defendants' failure to answer, however, admitted only the averments in the ......
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...the plaintiff became entitled as a matter of law to recover on the cause of action set out in his complaint. G.S. s 1-212; DeHoff v. Black, 206 N.C. 687, 175 S.E. 179; Johnson v. Sidbury, 225 N.C. 208, 34 S.E.2d Defendants' failure to answer, however, admitted only the averments in the comp......
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