Joyner v. Champion Fibre Co.

• Decision Date: 10 December 1919
• Docket Number: 554.
• Citation: 101 S.E. 373,178 N.C. 634
• Parties: JOYNER v. CHAMPION FIBRE CO. ET AL.
• Court: North Carolina Supreme Court

101 S.E. 373

178 N.C. 634

JOYNER v. CHAMPION FIBRE CO. ET AL.

No. 554.

Supreme Court of North Carolina

December 10, 1919

Appeal from Superior Court, Buncombe County; Ray, Judge.

Action by A. F. Joyner, administrator, against the Champion Fibre Company and others. Plaintiff's motion for judgment in accordance with a compromise was refused, and he and the Fidelity & Casualty Company, made a defendant, appeal; the latter from an order overruling its demurrer to the amended complaint. Judgment on both appeals affirmed.

Where a personal injury suit against three defendants was compromised by agreement for judgment assessing part of the recovery against two of the three defendants, and the rest against a casualty company, plaintiff's amended complaint subsequently making the casualty company a party, did not set forth a different cause of action, but merely sought to subject the casualty company to liability on the alleged compromise by its duly accredited agent, and it was not necessary to institute new action therefor, as the whole matter could be settled by issuing summons to make the casualty company an additional party defendant.

The action was brought against the defendant Southern Railroad Company, Champion Fibre Company, and J. H. Blizzard, to recover damages for the negligent killing of plaintiff's intestate while in the employment of the Champion Fibre Company, and while attempting to uncouple cars owned by Southern Railroad Company, causing his death. The Railroad Company and Fibre Company filed answers. The cause was set for trial, and witnesses subp naed. In negotiations for a compromise at that term it appeared that the defendant Fidelity & Casualty Company was liable for any recovery that might be had against the Fibre Company, and had employed lawyers in the cause to represent the Fibre Company, one of the defendants of record, and in consequence of instructions to their attorneys from the said Fidelity & Casualty Company who represented both the Fibre Company and the Fidelity & Casualty Company, a compromise was agreed to by counsel for all the parties that the plaintiff should recover judgment for $3,750, to be apportioned against the parties as follows Champion Fibre Company, $250; Southern Railroad Company $500; Fidelity & Casualty Company, $3,000.

Said agreement was announced in open court, and the witnesses were discharged. After they had left the jurisdiction of the court, and on the eve of adjournment, plaintiff was notified that the Fidelity & Casualty Company made objection to the apportionment of the judgment, claiming that the Railroad Company should pay a larger proportion and the Fibre Company a smaller part of the $3,750. The compromise was announced in open court at June term, 1918. At December term, 1918, the plaintiff filed a supplementary complaint in the nature of a "plea since last continuance," setting forth the said agreement, and the court adjudged that the Fidelity & Casualty Company was a necessary and proper party, and directed that a summons issue for said company as a party defendant, which was duly served upon the state insurance commissioner, as required by law, January 3, 1919.

At May term, 1919, the defendant Fidelity & Casualty Company entered a special appearance and moved to be dismissed, which motion was denied. It then filed a demurrer involving the same question, which was overruled, and it appealed. The Southern Railroad Company and the Fibre Company filed answer, admitting the allegations in the amended complaint. No answer having been filed by the Fidelity & Casualty Company, the plaintiff moved for judgment in accordance with the terms of the compromise set out in the verified amended complaint filed by the plaintiff, which the court refused, and the plaintiff appealed.

Wells & Swain, of Asheville, for plaintiffs.

Merrimon, Adams & Johnston, of Asheville, for defendant Fidelity & Casualty Co.

CLARK C.J.

The court had the right, and in fact it was its duty, to require all the parties to be brought in whose rights would be affected by the proceeding. Rev. § 414. The trial judge found as a fact that said company was a proper and necessary party after the alleged compromise, and his action was not...