Reid v. Holden

• Decision Date: 30 June 1955
• Docket Number: No. 677,677
• Citation: 88 S.E.2d 125,242 N.C. 408
• Court: North Carolina Supreme Court
• Parties: G. T. REID v. H. T. HOLDEN, t/a Holden Recapping Company, Carl L. Tucker and R. W. Isley.

Page 125

88 S.E.2d 125

242 N.C. 408

G. T. REID v. H. T. HOLDEN, t/a Holden Recapping Company, Carl L. Tucker and R. W. Isley.

No. 677

Supreme Court of North Carolina.

June 30, 1955

Gavin, Jackson & Gavin, Sanford, for plaintiff, appellant.

Hines & Boren, Jordan & Wright and Perry C. Hanson, Greensboro, for defendants Holden and Tucker, appellees.

Harry R. Stanley, Greensboro, for defendant Isley, appellee.

BOBBITT, Justice.

As stated by Seawell, J., in Sanderson v. Aetna Life Ins. Co., 218 N.C. 270, 10 S.E.2d 802, 803: 'Res judicata is an affirmative plea in bar which must be taken by answer and supported by competent evidence. When properly raised, the issue will be determined according to the practice of the Court, but the defense is not available on a motion to dismiss. Williams v. Hutton & Bourbonnais Co., 164 N.C. 216, 80 S.E. 257; Redmond v. Coffin, 17 N.C. 437; Bear v. [Board of] Com'rs of Brunswick County, 124 N.C. 204, 32 S.E. 558.'

Nor can this plea be considered on demurrer unless the facts supporting it appear on the face of the complaint. Hampton v. North Carolina Pulp Co., 223 N.C. 535, 27 S.E.2d 538; Miller v. First Nat. Bank, 234 N.C. 309, 67 S.E.2d 362. In the present case, no facts supporting defendants' pleas of res judicata appear on the face of the complaint. Nor do the replies contain allegations or admissions sufficient to support such pleas.

Unless otherwise provided by stipulation, only the documents constituting the record proper are before the court at pretrial conference. When the summons, pleadings and judgment in the former action brought by plaintiff, as relator, were offered in evidence, the time for offering evidence had not arrived. However, since plaintiff does not challenge the authenticity of these documents, plaintiff's counsel, upon the oral argument, asked that the court treat as abandoned his exceptive assignment of error based on the admission of this evidence and consider its significance in relation to defendants' pleas of res judicata. We accede to this request. Even so, we are mindful that these documents constituted the only evidence before the court below and before this Court.

In the former action, as appears from the caption, plaintiff, as relator, sued the named officials and the surety on their bonds. The action was to recover actual and punitive damages. Briefly stated, the complaint alleged that Tucker, the constable, and Isley, the deputy sheriff, on 12 April, 1952, acting under color of their respective offices, in connection with serving papers in a claim and delivery proceeding, 'viciously, maliciously and wantonly assaulted, severely wounded and permanently and seriously injured the relator herein by shooting him between the eyes with a tear gas bomb,' etc. Upon defendants' denial, the issue was submitted and answered in favor of defendants; and final judgment adverse to plaintiff-relator was entered.

Generally, the plea of res judicata may be sustained only when there is an identity of parties, of subject matter, and of issues. Leary v. Virginia-Carolina Joint Stock Land Bank, 215 N.C. 501, 2 S.E.2d 570; Queen City Coach Co. v. Burrell, 241 N.C. 432, 85 S.E.2d 688.

The plaintiff herein was the plaintiff in the former action. True, as required by G.S. § 109-34 in relation to actions on official bonds, the action was brought 'in the name of the State'. But the plaintiff-relator had the absolute right to bring such action. Boothe v. Upchurch, 110 N.C. 62, 14 S.E. 642. 'Entitled to receive to his own use the money recovered', he was the real party in interest. G.S. § 109-35. The conclusive effect of a prior judgment is on the real party in interest, not on a nominal party. 50 C.J.S., Judgments, § 771, page 300; Patterson v. Franklin, 168 N.C. 75, 84 S.E. 18.

Defendant Holden was not a party to the former action. Indeed, the complaint therein contains no reference to him. Moreover, the cause of action alleged by plaintiff-relator was for the sole purpose of recovering damages on account of personal injuries. No cause of action was alleged either to recover damages for wrongful seizure and conversion of the tires or for damages to plaintiff's automobile.

While not separately stated, it appears that plaintiff has attempted to allege at least three separate causes of action, to wit, (1) for personal injuries caused by unlawful assault upon him, (2) for damages to his automobile, and (3) for wrongful seizure and conversion of the tires. No demurrer was interposed on the ground of misjoinder of causes of action. Heath v. Kirkman, 240 N.C. 303, 82 S.E.2d 104. The intermixture of these separate causes of action renders it somewhat more difficult to deal with the questions now presented.

It is important to bear in mind that no evidence in relation to the claim and delivery proceeding, referred to in the Second Further Defense, was before the court. It does appear that defendants Tucker and Isley, in their answers to the complaint in the former action, alleged that they were engaged in serving claim and delivery papers on the plaintiff; but, unaided by either the evidence or the charge in the former action, we are unable to determine to what extent, if any, the validity of the claim and delivery proceeding was determined by the jury and adjudicated by the court. It is well settled that a verdict must be interpreted with reference to the pleadings, the evidence and the judge's charge. Jernigan v. Jernigan, 226 N.C. 204, 37 S.E.2d 493. And in determining whether a judgment constitutes res judicata, the judgment must be interpreted with reference to the pleadings, the evidence, the judge's charge and the issues submitted to and answered by the jury. Clinard v. Town of Kernersville, 217 N.C. 686, 9 S.E.2d 381.

As stated, the former action included no alleged cause of action on account of damages to plaintiff's automobile. Nor does it appear that this subject was referred to in any pleading in the former action. True, where there is an indivisible cause of action the plaintiff cannot bring suits piecemeal for distinct elements of damage. Gaither Corp. v. Skinner, 241 N.C. 532, 85 S.E.2d 909; Bruton v. Carolina Power & Light Co., 217 N.C. 1, 6 S.E.2d 822; Underwood v. Dooley, 197 N.C. 100, 147 S.E. 686, 689, 64 A.L.R. 656. As stated by Connor, J., in Underwood v. Dooley, supra: 'It is therefore well settled in this jurisdiction that one who has sustained damages, resulting from injuries both to his property and to his person, caused by the single wrong or tort of another, can maintain only one action for the recovery of his damages, and that he cannot split his cause of action, arising from a single wrong or tort, and maintain separate actions against the tort-feasor, as defendant, and recover therein for separate items of damage resulting from said wrong or tort.'

But a cause of action for an assault inflicting personal injuries, nothing else appearing, is separate and distinct from a cause of action for tortious injury and damage to personal property. While distinct causes of action belonging to defined classes may be united in the same complaint, G.S. § 1-123, the plaintiff is permitted, not compelled, to do so. Shakespeare v. Caldwell Land & Lumber Co., 144 N.C. 516, 57 S.E. 213; Tyler v. Capeheart, 125 N.C. 64, 34 S.E. 108; Gregory v. Hobbs, 93 N.C. 1. 'Although a plaintiff, having separate and distinct causes of action against the same defendant, may properly join them in one action, he is not required to do so in order to prevent a judgment on one from barring an action on the other.' 50 C.J.S., Judgments, § 668, page 114. In Shakespeare v. Caldwell Land & Lumber Co., 144 N.C. 516, 57 S.E. 213, 215, this appears: "The judgment is decisive of the points raised by the pleadings or which might properly be predicated upon them. This certainly does not embrace any matters which might have been brought into the litigation or any causes of action which the plaintiff might have joined, but which in fact are neither joined nor embraced in the pleadings.' ' Jefferson v. Southern Land Sales Corp., 220 N.C. 76, 16 S.E.2d 462.

For the reasons stated, upon the present record, the court below was in error in holding that the former judgment, under principles of res judicata, constituted a bar to the alleged causes of action for (1) tortious injury and damage to the automobile, and (2) for wrongful seizure and conversion of the tires. Nor does the one-year statute of limitations apply to such actions. G.S. § 1-52; G.S. § 1-54.

In their brief, appellees state: 'In the present action the plaintiff alleged that as a result of a conspiracy...