Johnson v. Smith

• Decision Date: 22 March 1939
• Docket Number: 239.
• Citation: 1 S.E.2d 834,215 N.C. 322
• Parties: JOHNSON v. SMITH.
• Court: North Carolina Supreme Court

1 S.E.2d 834

215 N.C. 322

JOHNSON v. SMITH.

No. 239.

Supreme Court of North Carolina

March 22, 1939

Dupree & Strickland, of Angier, and L. M. Chaffin, of Lillington, for appellant.

Ruark & Ruark, of Raleigh, for appellee.

SCHENCK Justice.

This is an action by an administratrix to recover damages for the wrongful death of her intestate wherein it is alleged in the complaint that such death was due to a collision between an automobile operated by said intestate and an automobile operated by the defendant, which said collision was caused by the negligence of the defendant. In the answer negligence of the defendant is denied, and contributory negligence of the intestate is pleaded, and by way of a second further answer and defense motion to abate the action is made for the reason that there is "another action pending between the same parties for the same cause."

The salient facts are these: On May 13, 1938, there was a collision between an automobile operated by the intestate and an automobile operated by the defendant on State Highway No 210 in Harnett County, from injuries received in which the intestate died June 5, 1938. On June 2, 1938, W. Leslie Smith, defendant in this action, commenced action against Dallas D. Johnson in Pitt County for personal injuries and property damage suffered in said automobile collision which he alleged was caused by the negligence of said Johnson summons in which action was returned unserved due to the death of the defendant therein named. At the time of the issuance of summons in that case the plaintiff therein received an order from the clerk allowing him until June 21 1938, in which to file complaint. The plaintiff duly qualified as administratrix of Dallas D. Johnson, and on July 29, 1938, procured summons in this case to issue from the Superior Court of Harnett County, which was duly served, with copy of complaint, on the defendant, and on August 25, 1938 defendant filed answer denying the material allegations of the complaint, alleging contributory negligence of the decedent, and also lodging motion to abate plaintiff's action on the ground that another action between the same parties, involving the same subject matter, was pending in the Superior Court of Pitt County. On September 17, 1938, plaintiff filed reply to defendant's second further answer and defense and motion to abate in which denial was made of another action pending between the same parties involving the same subject matter.

On August 22, 1938, W. Leslie Smith procured an order making the administratrix of Dallas D. Johnson, deceased, a party defendant in the action he had theretofore instituted against said decedent in Pitt County, and had summons to issue to said administratrix, C.S. § 462, and filed complaint wherein it is alleged that plaintiff suffered personal injuries and property damage in a collision between an automobile of said Smith and an automobile of said decedent on June 2, 1938, caused by the negligence of said decedent.

At the September Term, 1938, of Harnett County, the motion to abate was heard and allowed, and a judgment entered dismissing the action, and from this judgment the plaintiff appealed, assigning errors.

"The purpose of the code system is to avoid a multiplicity of actions by requiring litigating parties to try and dispose of all questions between them on the same subject-matter in one action. Where an action is instituted, and it appears to the court by plea, answer, or demurrer, that there is another action pending between the same parties, and substantially on the same subject-matter, and that all the material questions and rights can be determined therein, such action will be dismissed." Alexander v. Norwood, 118 N.C. 381, 24 S.E. 119; J. A. Jones Construction Co. v. Hamlet Ice Co., 190 N.C. 580, 130 S.E. 165; Morrison v. Lewis, 197 N.C. 79, 147 S.E. 729.

The defendant was authorized to take the objection of "another action pending between the same parties for the same cause" by answer. C.S. §§ 511, 517.

The plaintiff in the Pitt County case is the defendant in this case and is therefore the same party; and the plaintiff in this case is the administratrix of the defendant in the Pitt County case, and is, in our opinion, in contemplation of law the same party. The administratrix succeeded to all the rights and assets of her intestate and is subjected to all of his debts and liabilities, and the right to maintain an action for the wrongful death of her intestate is but a statutory continuation, extension and enlargement, of the right that existed prior to his death in favor of her intestate to maintain a cross action or counterclaim for personal injuries in the action instituted against him in Pitt County. "No action abates by the death *** of a party ***" and "the court *** may allow the action to be continued, by, or against, his representative or successor in interest." C.S. § 461. Thus is recognized the continuity of the parties to actions instituted by or against a decedent prior to his death with the parties to such actions continued by or...