Leary v. Virginia-Carolina Joint Stock Land Bank

• Decision Date: 03 May 1939
• Docket Number: 19.
• Citation: 2 S.E.2d 570,215 N.C. 501
• Parties: LEARY et al. v. VIRGINIA-CAROLINA JOINT STOCK LAND BANK et al.
• Court: North Carolina Supreme Court

2 S.E.2d 570

215 N.C. 501

LEARY et al. v. VIRGINIA-CAROLINA JOINT STOCK LAND BANK et al.

No. 19.

Supreme Court of North Carolina

May 3, 1939

Civil action for recovery of property damage resulting from alleged actionable negligence.

The undisputed facts are substantially these: On the night of 18 March, 1938, a motor truck, owned by plaintiffs and operated by their employee, Elton Holley, travelling on the State Highway in Bertie County, North Carolina, from Windsor to Edenton, and a passenger automobile owned by the defendant bank, in the possession, and under the control and direction of its travelling agent and servant, W. B. Newbern, and operated by the defendant, Junius Bess, as chauffeur for the said Newbern, also agent and servant of the bank, in the course of their employment and in the scope of their authority as such agents, proceeding in the same direction but at the moment in the act of backing, came into collision resulting in the death of Newbern.

On 26 April, 1938, plaintiffs instituted this action in the Superior Court of Chowan County to recover for damage to their said truck, allegedly proximately resulting from the negligence of the defendant bank, through its agents and servants, Newbern and Bess. Defendants deny plaintiff's allegations of negligence, plead contributory negligence and set up counterclaims to recover alleged damage to the automobile of the defendant bank, and for alleged damage resulting from injury to person of the defendant Bess allegedly proximately resulting from the negligence of the plaintiffs.

When this action came on for hearing at the December Term, 1938 of Chowan County, the defendants herein by leave of the court filed the following amendment to their answer:

"A. That after the institution of this action one Dora G. Newbern, administratrix of W. B. Newbern, deceased, to-wit, on the -- day of --, 1938, instituted an action against the said J. Clarence Leary and R. W. Leary, Jr., trading as Leary Brothers Storage Company, the plaintiffs herein, in the Superior Court of Pasquotank County, North Carolina, having for its purpose the recovery of damages for the wrongful death of the said W. B. Newbern, occasioned, as it was alleged in the complaint, by the negligence of the plaintiffs herein in the operation of their truck; that upon the trial of said action so instituted by the said Dora G. Newbern, administratrix of W. B. Newbern, deceased, it was caused to appear and admitted by all the parties that the car in which the said W. B. Newbern was riding was being operated by the defendant herein, Junius Bess, it being admitted that the said Junius Bess was the agent and employee of the Virginia-Carolina Joint Stock Land Bank, a defendant herein, and that the negligence of the said Junius Bess, if any, was by reason of the rule of respondeat superior the negligence of the said W. B. Newbern; that upon the trial of said action a judgment was entered against the plaintiffs herein, the defendants in that action, awarding unto the said Dora G. Newbern, administratrix of W. B. Newbern, the sum of $12,500.00 for the wrongful death of her intestate; that the said Superior Court of Pasquotank County, North Carolina, had jurisdiction of the parties to said action and of the subject matter thereof; that the issues determined by the Court and jury in that action in favor of the plaintiff therein and against the plaintiff in this action as to the negligence of the plaintiffs herein, the defendants in that action, are determinative of the issues of negligence in this action, and that said judgment is still standing, subsisting and unreversed, and that the evidence in this case will be the same, as they are informed and believe. A certified copy of the judgment roll in said cause is hereto attached.

"B. That the said Virginia-Carolina Joint Stock Land Bank and the said Junius Bess were and are in privity with the said Dora G. Newbern, administratrix of W. B. Newbern, deceased, and the said judgment rendered by the Superior Court of Pasquotank County, North Carolina, is binding upon them and upon the plaintiffs herein and that the matters alleged in the complaint herein, by reason of said judgment, have become and now are res adjudicata, and said judgment is specially pleaded in bar of the plaintiffs' right to recover against these defendants and in support of their counterclaim heretofore set up herein."

From the judgment roll in the Newbern case attached to said amendment to answer here, it appears that the defendants there, plaintiffs here, in answer to allegations of complaint make these pertinent averments: That "plaintiff's intestate, W. B. Newbern, was riding in a Plymouth automobile then in his possession and under his control, which was then and there being driven for him by a chauffeur or driver who was subject to his control and direction"; that "the said W. B. Newbern; or his driver of said Plymouth automobile, or both of them, negligently, carelessly and unlawfully caused said automobile to be stopped and immediately backed rapidly ***"; and "that the negligence of plaintiff's intestate and that of the driver of the Plymouth car in which he was riding were the sole proximate cause of the collision."

Then, in setting up plea of contributory negligence, defendants there averred that "the said plaintiff's intestate and his said chauffeur and driver, negligently, carelessly and unlawfully, without keeping a sufficient and proper lookout, and without giving any warning or signal whatsoever, and without any tail light on said Plymouth car, suddenly stopped said Plymouth car on said highway and backed it *** into the truck of these defendants"; "that as a result of this collision and the aforesaid negligence of W. B. Newbern and Junius Bess, the plaintiff's intestate sustained the injuries of which plaintiff now complains, and both the Plymouth car and the defendants' truck were badly damaged", and "that if the death of plaintiff's intestate was due to any negligence whatever on the part of the defendant, *** the plaintiff's said intestate by his own negligence contributed to and proximately caused such injury and death sustained by him by the negligent and careless acts, doings and omission on the part of said plaintiff's intestate or of his said chauffeur and driver, Junius Bess, or both of them, acting singly or in conjunction in the particulars set forth in this answer; and the negligence and contributory negligence on the part of plaintiff's intestate or of his said chauffeur and driver, Junius Bess, are hereby expressly pleaded in bar of any recovery of these defendants."

It further appears from said judgment roll in the Newbern case, that upon issues joined and submitted, the jury found that plaintiff's intestate was injured and killed by the negligence of the defendants as alleged in the complaint; and that plaintiff's intestate, by his own negligence, contributed to his injury and death as alleged in the answer; but that, notwithstanding, plaintiff's own contributory negligence, the defendants could, through the exercise of due care, have avoided the injury and death of plaintiff's intestate as alleged in the reply; that damages were assessed; that judgment was thereupon rendered in favor of plaintiff; and that defendants appealed to the Supreme Court. It is pertinent here to interpolate and state that on such appeal the judgment was affirmed. See opinion Newbern v. Leary, 215 N.C. 134, 1 S.E.2d 384.

Plaintiffs demurred ore tenus to the amendment to the answer of defendants for that the facts alleged do not constitute a defense.

Thereupon, the court, after reciting in part "that it appearing to the court that the demurrer ought to be overruled, and that upon the pleadings in this action and proper proof of the matters and things contained in said amendment to the answer that such plea is good and acts as a bar to all matters and things in the above entitled action, except the amount of damages due defendants on their counterclaim", adjudged "that plaintiffs' demurrer be and the same is hereby overruled, and that the matters and things asserted in the amendment to the answer be and the same hereby are in bar of all matters and things asserted in this action, other than defendants' right to submit issues to the jury for its determination upon their counterclaims".

From this judgment plaintiffs appeal to the Supreme Court, and assign error.

W. D. Pruden, of Edenton, for appellants.

R. M. Cann, of Greensboro, and McMullan & McMullan, M. B. Simpson, and R. Clarence Dozier, all of Elizabeth City, for appellees.

WINBORNE Justice.

Admitting the truth of the facts alleged and contained in the amendment to the answer of defendants, as we must do in testing a demurrer, this question arises: Is the judgment in the Newbern case res judicata of the matters alleged in the complaint in, and a bar against the plaintiffs' prosecution of, this action? We are of opinion and hold that the question is properly answered in the affirmative.

"As to matter set up as defense the usual ground of demurrer is its insufficiency, and this may be taken by a formal demurrer or demurrer ore tenus." McIntosh, North Carolina Prac. & Proc., 507, sec. 475; Toler v. French, 213 N.C. 360, 196 S.E. 312; Commerce Ins. Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369.

Generally to constitute a judgment an estoppel there must be identity of parties, of subject matter and of issues. Hardison v. Everett, 192 N.C. 371, 135 S.E. 288. It is a principle of elementary law that the estoppel of a judgment must be mutual, and "ordinarily, the rule is that only parties and privies are bound by a judgment". Rabil v. Farris, 213 N.C. 414, 196 S.E. 321, 322, 116 A.L. R. 1083. When used with respect to estoppel by...