Jenkins v. Fowler

• Decision Date: 06 November 1957
• Docket Number: No. 388,388
• Citation: 100 S.E.2d 234,247 N.C. 111
• Court: North Carolina Supreme Court
• Parties: W. H. M. JENKINS v. Washington Cortez FOWLER and Mrs. Salena Fowler Coley.

Page 234

100 S.E.2d 234

247 N.C. 111

W. H. M. JENKINS v. Washington Cortez FOWLER and Mrs. Salena Fowler Coley.

No. 388

Supreme Court of North Carolina.

Nov. 6, 1957

Royster & Royster, Oxford, for plaintiffappellant.

Reade, Fuller, Newsom & Graham and Gantt, Gantt & Markham, Durham, for defendants-appellees.

RODMAN, Justice.

Plaintiff offered evidence tending to establish the allegations of negligence as set out in the complaint. Defendants offered evidence tending to negative plaintiff's allegations of negligence. Defendants also offered the record in the Granville County action pleaded as an estoppel.

That was an action brought by Mrs. Fannie Fowler, mother of the present defendants, to recover damages from Jenkins, the present plaintiff, for personal injuries sustained in the collision forming the basis of the present action. Mrs. Fowler alleged that she was a passenger in the car of her son, Washington Cortez Fowler, operated at the time by Mrs. Coley; that her injuries were due to the negligence of the defendant Jenkins, present plaintiff. Jenkins answered. He denied any negligent conduct proximately causing the collision. He asserted that the collision was caused by the sole negligence of Mrs. Coley who was operating her brother's car as his agent. He then averred that if, in fact, he was negligent, Mrs. Coley and her principal were joint tortfeasors from whom he was entitled to contribution. On his motion, the defendants in this action were made additional parties to the Granville County suit. The additional defendants answered. They denied the allegations of negligence asserted by the then defendant Jenkins. The cause was tried at the October 1956 Term of Granville. The jury answered the issue as to Jenkins' negligence in the affirmative and fixed the amount of Mrs. Fowler's damages. In addition, an issue was submitted and answered thus: 'Was the defendant, Mrs. Salena Fowler Coley, negligent and did her negligence concur with the negligence of the defendant, Jenkins, and contribute to the injuries of the plaintiff, Mrs. Fannie Franklin Fowler, as alleged in the answer of the defendant, Jenkins? Answer--No.' Judgment was entered in accord with the verdict that Mrs. Fowler recover of Jenkins the damage assessed by the jury. It was further adjudged: 'that the defendant, W. H. M. Jenkins, have and recover nothing of the defendants, W. Cortez Fowler and Mrs. Salena Fowler Coley, by reason of his action for contribution against them, which alleged cause of action is set out in the answer of the said defendant, Jenkins, and that the defendant Jenkins be taxed by the Clerk with the costs of his action against the said defendants, W. Cortez Fowler and Mrs. Salena Fowler Coley.' Jenkins noted an appeal from the judgment so entered. His appeal was dismissed in March 1957.

When the present defendants were, at the instance of the present plaintiff, made defendants in the Granville County action, Jenkins became as to them a plaintiff with the burden of establishing their negligence. Norris v. Johnson, 246 N.C. 179, 97 S.E.2d 773. The foundation of the claim then asserted is identical with the facts asserted to form the basis of the present claim. A jury has heard the facts, determined them adversely to the present plaintiff, and judgment has been entered on that verdict. This judgment is conclusive and prevents further inquiry into the facts forming the basis of the present action. Thompson v. Lassiter, 246 N.C. 34, 97 S.E.2d 492; Stansel v. McIntyre, 237 N.C. 148, 74 S.E.2d 345; Snyder v. Kenan Oil Co., 235 N.C. 119, 68 S.E.2d 805; Herring v. Queen City Coach Co., 234 N.C. 51, 65 S.E.2d 505; Tarkington v. Rock Hill Printing & Finishing Co., 230 N.C. 354, 53 S.E.2d 269, 11 A.L.R.2d 221; Crawford v. Crawford, 214 N.C. 614, 200 S.E. 421; Bryant v. Shields, 220 N.C. 628, 18 S.E.2d 157; Gay v. Stancell, 76 N.C. 369.

The judgment roll in the prior action having been offered in evidence, it became the duty of the court on a proper motion to again enter a judgment denying plaintiff's right to recover from defendants.

Is a motion to nonsuit, made at the conclusion of the evidence, a proper method of disposing of the case? The answer is yes.

At common law a defendant could test the sufficiency of the evidence to permit a recovery by demurrer to the evidence. If the court should overrule the demurrer, defendant could not offer evidence. Stith v. Lookabill, 71 N.C. 25; State v. Adams, 115 N.C. 775, 20 S.E. 722; State v. Groves, 119 N.C. 822, 25 S.E. 819.

'A demurrer to evidence withdraws a case from the jury, and it is laid down in Tidd, 865, that when the evidence is in writing, or if parol, is certain, the adverse party will be required to join in the demurrer; but when the parol evidence is loose and indeterminate or is circumstantial, he will not be required so to do, unless the party demurring will distinctly admit upon the record every fact and every conclusion which the evidence offered conduces to prove.' Nelson v. Whitfield, 82 N.C. 46; 88 C.J.S. Trial § 225, p. 514; 53 AmJur. 262.

A defendant could also test plaintiff's right of recovery by motion for directed verdict. Such a motion was not circumscribed by the limitations relating to a demurrer to the evidence. McIntosh, N.C.P. & P., 2d ed., sec. 1488.

The Hinsdale Act, G.S. § 1-183,...