Surratt v. Chas. E. Lambeth Ins. Agency, Inc.
| Decision Date | 23 May 1956 |
| Docket Number | No. 245,245 |
| Citation | 244 N.C. 121,93 S.E.2d 72 |
| Parties | J. G. SURRATT v. CHAS. E. LAMBETH INSURANCE AGENCY, Inc., Samuel L. Arrington, and The National Indemnity Company. |
| Court | North Carolina Supreme Court |
Peter L. Long, Goodman & Goodman, William H. Morrow, Jr., Charlotte, for plaintiff-appellant.
Carpenter & Webb, Charlotte, for appellee Ins. Agency.
W. M. Nicholson, Charlotte, Uzzell & DuMont, Asheville, for appellees Indemnity Co. and Samuel L. Arrington.
The exception to the signing and entry of judgment, the sole exception on this appeal, presents for decision the question as to whether the pleadings and admitted facts, on which the trial judge ruled, support the judgment. Culbreth v. Britt, Corp., 231 N.C. 76, 56 S.E.2d 15, and cases cited; also Medical College of Virginia, Medical Division v. Maynard, 236 N.C. 506, 73 S.E. 2d 315; Willingham v. Bryan Rock & Sand Co., 240 N.C. 281, 82 S.E.2d 68; Convent of Sisters of St. Joseph of Chestnut Hill v. City of Winston Salem, 243 N.C. 316, 90 S.E.2d 879, and cases there cited.
The appellant challenges the judgment upon the grounds; That the trial judge erred in holding (1) that the proceedings and judgment of Parker, Joseph W., J., in Wilson Superior Court in the action of Newsome v. Surratt upon the motion of Surratt is res judicata of the matters alleged in the complaint in present action, and (2) that the action of Surratt in so proceeding in that case constitutes an election of remedies which preclude the maintenance by him of the present action.
Now as to res judicata: Ordinarily the operation of estoppel by judgment depends upon the identity of parties, of subject matter and of issues, that is, if the two causes of action are the same, judgment final in the former action would bar the prosecution of the second. McIntosh N. C. P & P in Civil Cases, Sec. 659, p. 748; Randle v. Grady, 228 N.C. 159, 45 S.E.2d 35.
In the light of this principle, it is appropriate to review the pertinent facts. It appears that in the action instituted in Superior Court of Wilson County by one Newsome against J. G. Surratt, t/a S & S Transit, Fred C. Porter and Jocie Motor Lines, Inc., plaintiff sought to recover for personal injury and property damages sustained in a collision between a truck of Transit Company, operated by its regular employee Porter, under a lease agreement between Transit Company and defendant Jocie Motor Lines, the agreement providing that the Transit Company would indemnify "Lessee against * * * (2) any loss or damage resulting from the negligence, incompetence * * * of such driver(s).' ' At the time of the collision the truck was being operated with ICC license plates issued to Motor Lines attached thereto and under authority of a certificate of license issued by the Interstate Commerce Commission to the Motor Lines. And Jocie Motor Lines, answering the complaint of Newsome, filed a cross-action against its co-defendant Surratt, t/a Transit Company, and Porter, under the indemnity provision in the said lease agreement. Defendant Surratt t/a Transit Company, throgh attorney Arrington, filed answer to the complaint of Newsome. After pre-trial conference, and upon stipulation of parties, judgment was rendered denying to plaintiff recovery of any amount against Surratt t/a Transit Company, but a judgment in favor of Newsome against Jocie Motor Lines and Porter was entered in sum of $6,000, and defendant Jocie Motor Lines was allowed judgment over against Porter and Surratt in sum of $6,000.
Thereafter Surratt, through attorneys other than Arrington, perfected appeal to Supreme Court of North Carolina. On such appeal the determinative question raised thereby was as to whether the trial court erred by the entry of the judgment in favor of Jocie Motor Lines over against Surratt and Porter. This Court answered the question in the negative. See 237 N.C. 297, 74 S.E.2d 732, 734.
The record and case on the present appeal disclose these facts, briefly stated; After the decision on the appeal above referred to, Surratt, through his attorneys, made a motion in the cause in the Newsome case in Superior Court of Wilson County to set aside the said judgment in favor of Jocie Motor Lines on the grounds of fraud allegedly perpetrated by National Indemnity Company, through its general agent, and attorney Arrington, whereby he was prevented from having his day in court. The motion was heard...
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