Meacham v. Larus & Bros. Co

• Decision Date: 15 December 1937
• Docket Number: No. 681.,681.
• Citation: 194 S.E. 99,212 N.C. 646
• Court: North Carolina Supreme Court
• Parties: MEACHAM. v. LARUS & BROS. CO. et al.

194 S.E. 99

212 N.C. 646

MEACHAM.

v.LARUS & BROS. CO. et al.

No. 681.

Supreme Court of North Carolina.

Dec. 15, 1937.

Appeal from Superior Court, Guilford County; W. F. Harding, Judge.

Separate actions by Henry A. Meacham and others against the Larus & Bros. Company and H. S. Bivens. From a judgment of the superior court reversing judgments of the municipal court for defendants, defendants appeal. Record in the Meacham case alone brought to Supreme Court, by stipulation.

Affirmed.

Sapp & Sapp, of Greensboro, for appellants.

Silas B. Casey and Walser & Wright, all of High Point, for appellee.

SCHENCK, Justice.

This is a civil action instituted in the Municipal Court of the City of High Point to recover damages for personal injuries to the plaintiff alleged to have been proximately caused by the negligence of the defendants. The allegations of the complaint are to the effect that the plaintiff was a passenger in an automobile owned and operated by one A. R. Martin, and that an automobile owned by the corporate defendant and operated by the individual defendant negligently collided with the Martin automobile upon the public highway and thereby injured the plaintiff. The answer denied the negligent operation of the automobile driven by the defendant Bivens, and entered the alternative plea of contributory negligence of the plaintiff, alleging that the Martin automobile was being operated in a joint enterprise of the plaintiff and others, including the driver thereof.

The defendants, by leave of court, filed an "Amendment to Answer, " wherein they set up and allege that there were three other cases instituted against the defendants by one Sedberry, one Alsobrook, and one Proctor, respectively, wherein the allegations and facts were practically the same as in this case, and that the Sedberry case had been tried, and that upon a demurrer to the evidence a nonsuit had been entered as to the corporate defendant and a judgment in favor of the individual defendant entered upon the issue as to his negligence having been answered in his favor, and that at the trial of the Sedberry case the plaintiff in this case, Meacham, as well as the plaintiffs in the Alsobrook and Proctor cases, were present and testified as witnesses, and that Sedberry was represented by the same attorneys as represent Meacham and Alsobrook and Proctor, and that said attorneys resisted motion to consolidate for the purpose of trial the four cases of Sedberry, Alsobrook, Proctor, and Meacham; and defendants aver that they ought not to be required to defend more than once the same cause of action, and that the plaintiff ought not to be allowed to maintain this action for the reasons specified in the "Amendment to Answer."

The plaintiffs demurred to the "Amendment to Answer" upon the ground that it was not sufficient to sustain either the plea of res judicata or estoppel. This demurrer was overruled. The defendants thereupon moved the court to dismiss the actions of Meacham, Alsobrook, and Proctor upon the allegations in the "Amendment to Answer, " the facts alleged therein being admitted, and the court allowed the motion and dismissed the actions of Meacham, Alsobrook, and Proctor. From this judgment dismissing the several actions, the plaintiffs therein appealed to the superior court, assigning as error the judgment of dismissal.

The cases came on for trial before Harding, J. at the November term, 1937, of Guilford...