Horton v. Perry

• Decision Date: 13 October 1948
• Docket Number: 240
• Citation: 49 S.E.2d 734,229 N.C. 319
• Parties: HORTON v. PERRY et al.
• Court: North Carolina Supreme Court

49 S.E.2d 734

229 N.C. 319

HORTON v. PERRY et al.

No. 240

Supreme Court of North Carolina

October 13, 1948

The plaintiff complains of injury to person and property through the alleged joint negligence of the defendants, in a threeway collision, or collisions between three vehicles at approximately the same time.

The plaintiff alleges, substantially, that he was driving along the highway near Pittsboro, in his own wagon, drawn by two mules, and was followed closely,--within four or five feet--by a car owned by the defendant John Wood, Sr., and driven by John Wood, Jr., the car having been furnished him by the defendant John Wood, Sr., and being driven by his consent. It further alleged that the Wood automobile was followed by the defendant Perry, driving his own car at a high and unlawful rate of speed, who drove violently into the Wood car, and the impetus of the collision caused the Wood car to crash into the plaintiff's wagon, causing much injury to the same and to the draught mules, and serious injury to the plaintiff. Appropriate specifications of negligence were made respecting the conduct of each defendant operating the automobiles and Wood, Sr., was joined on the principle respondeat superior.

The defendants answered, each denying his own negligence and liability; and the defendants Wood, Sr., and Wood, Jr interposed as a 'second further answer and defense' a cross action against the defendant Perry, in which they alleged that Perry's negligence alone caused the collision, set the damage to the Wood car at $300, for which Wood, Sr., as the owner thereof, demands judgment against Perry.

Perry filed a motion to strike out the cross action as irrelevant prejudicial, and improper.

The motion was overruled, and Perry appealed.

Wade Barber and Billy C. Smith, both of Pittsboro, for defendant-appellant.

Broughton & Teague, of Raleigh, for defendants-appellees.

SEAWELL Justice.

The motion of the appealing defendant to strike out the cross action against him is based on the rule frequently invoked that only those matters germane to the cause of action asserted in the complaint, and in which all the parties have a community of interest, may be litigated in the same action. Brown v. Coble, 76 N.C. 391; Logan v Wallis, 76 N.C. 416; Street v. Tuck, 84 N.C 605; Burns v. Williams, 88 N.C. 159; Mitchell v. Mitchell, 96 N.C. 14, 17, 1 S.E. 648; Montgomery v. Blades, 217 N.C. 654, 9 S.E.2d 397; Wingler v. Miller, 221 N.C. 137, 19 S.E.2d 247; Beam v. Wright, 222 N.C. 174, 22 S.E.2d 270.

Against this position the appellees argue that the rule permitting consolidation of cases for the purpose of trial is applicable and should prevail.

There is, of course, a substantial difference between the consolidation of cases for the convenience of trial and the joinder of causes of action for judicial determination in their combined aspect. The former is in the exercise of the inherent power of the court and, in applicable cases, in its discretion; but this may be exercised only for the purpose of trial as will be found by repeated statements of the Court where the right has been exercised, and in that declared purpose will be found its limitations;--it- ""it cannot annul or suspend the statute relating to joinder. In none of the cited cases, as far as we can discover, has there been any attempt to supersede statutory authority.

Referring to consolidation in the latter sense--for convenience of trial,--Professor McIntosh, in his work on North Carolina Practice and Procedure, pp. 536, 539, says: 'The Court has arranged the cases in which a consolidation may be made into three classes: '(1) where the plaintiff could have united all his causes of action in one suit, and has brought several, and these causes of action must be in one and the same right, and a common defense is set up to all; (2) where separate suits are instituted by different creditors to subject the same debtor's estate; (3) where the same plaintiff sues different defendants, each of whom defends on the same grounds, and the same question is involved in each.' These may not embrace all the cases, but they serve to illustrate the rule by which the court is governed in ordering such union. The last class might also include actions by different plaintiffs against the same defendant, where the facts are substantially the same.'

Cited in Abbitt v. Gregory, 201 N.C. 577, 594, 160 S.E. 896, and in Peeples v. R. R. (Edwards v. R. R., Kearney v. R. R.), 228 N.C. 590, 592, 46 S.E.2d 649. On page 594 will be found an extensive collection of authorities on the subject of consolidation, of which Fleming v. Holloman, 190 N.C. 449, 130 S.E. 171, Hewitt v. Urich, 210 N.C. 835, 187 S.E. 759, and Robinson v. Standard Transportation Co., 214 N.C. 489, 199 S.E. 725, are typical. But as a rule of court procedure, as we have said, it will not operate to annul or suspend the statute to let in litigation against the defendants on cross demands not related to the subject of the action while the plaintiff stands by merely to witness the fight.

The integration of causes of action, which we technically know as joinder, is not primarily instigated by the court, but is done on the initiative of the parties seeking to assert and enforce their rights by final judgment of the court; and while under...