Hoover v. Globe Indem. Co, 473.

• Decision Date: 27 April 1932
• Docket Number: No. 473.,473.
• Citation: 163 S.E. 758,202 N. C. 655
• Court: North Carolina Supreme Court
• Parties: HOOVER. v. GLOBE INDEMNITY CO. et al.

163 S.E. 758

202 N. C. 655

HOOVER.

v.GLOBE INDEMNITY CO. et al.

No. 473.

Supreme Court of North Carolina.

April 27, 1932.

Appeal from Superior Court, Gaston County; Finley, Judge.

Suit by Mrs. Fannie Hoover, administratrix of the estate of A. S. Hoover, deceased, against the Globe Indemnity Company and Dr. O. L. Miller, wherein the Globe Indemnity Company filed a cross-complaint against Dr. 0. L. Miller. From a Judgment sustaining a demurrer to the cross-complaint, cross-complainant appeals.

Affirmed.

P, W. Garland, of Gastonia, for appellant.

J. Laurence Jones, of Charlotte, for appellee.

ADAMS, J.

In January, 1930, the plaintiff's intestate was injured while in the service of the Cramerton Mills, Inc., the employer and the employee being subject to the North Carolina Workmen's Compensation Law (Code 1931, § 8081 (h) et seq.). The Globe Indemnity Company was the insurance carrier. On January 3, 1931, the plaintiff brought suit against the carrier and filed a complaint in which she alleged: (a) That her intestate, after his injury, employed a skillful physician to attend and treat him; (b) that while her intestate was undergoing such treatment the carrier through fraud and duress assumed control of his case and undertook through its agents, who were licensed practitioners of medicine, scientifically to treat his ailment; (c) that her intestate was thereby compelled to accept improper and injurious treatment; (d) that the carrier was negligent; (e) that its negligent treatment was the proximate cause of the intestate's death; and (f) that she is entitled to damages.

On motion of the carrier the plaintiff furnished a bill of particulars, in which she alleged that Paul B. Clark as agent of the carrier had committed her intestate to the care and treatment of Dr. O. L. Miller, an employee of the carrier, and in which she purports to set out the physician's negligent treatment. At the next term of court, Dr. Miller was made a party defendant. Having previously filed an answer, the carrier thereupon filed another paper entitled a cross-complaint, which was formulated as an answer to the complaint and to the bill of particulars and as a complaint against its co-defendant, Dr. Miller. In the cross-complaint the carrier alleged that if Dr. Miller was negligent his negligence was primary; that any negligence on the part of the carrier would be secondary; and that the plaintiff should not be permitted to recover damages from the party liable secondarily until an execution against the other party had been returned unsatisfied. It is also alleged that if both these parties were negligent they...