Thigpen v. Kinston Cotton Mills

• Decision Date: 06 October 1909
• Citation: 65 S.E. 750,151 N.C. 97
• Parties: THIGPEN et al. v. KINSTON COTTON MILLS et al.
• Court: North Carolina Supreme Court

65 S.E. 750

151 N.C. 97

THIGPEN et al. v. KINSTON COTTON MILLS et al.

Supreme Court of North Carolina

October 6, 1909

Appeal from Superior Court, Lenoir County; W. R. Allen, Judge.

Action by Roland Thigpen and another against the Kinston Cotton Mills and another. From a judgment sustaining a demurrer to the complaint, plaintiffs appeal. Affirmed.

Where there was a misjoinder of parties plaintiff as well as of causes of action, the action cannot be divided, upon sustaining a demurrer to the complaint for misjoinder of causes of action.

G. V. Cowper and Y. T. Ormond, for appellants.

Davis & Davis, for appellee Employers' Liability Assur. Corp. Rouse & Land, for appellee Cotton Mills.

BROWN, J.

This is a suit brought by Roland Thigpen, an infant, and by Albert Thigpen, individually, against the Kinston Cotton Mills and the Employers' Liability Assurance Corporation, Limited, of London, England, for injuries received by the plaintiff Roland Thigpen, while at work in the cotton mills of the Kinston Cotton Mills.

1. The son sues to recover damages for a personal injury received while working in the cotton mills, alleged to be due to negligence of the employer. The father is joined in same action, and sues to recover of the employer for the loss of his son's services. One of the grounds of demurrer is the misjoinder of parties and causes of action. We think the demurrer was properly sustained and the action dismissed. The son has no interest in the cause of action of the father, and the father has no interest in the cause of action of the son. It is a manifest misjoinder both of parties and causes of action, and therefore the action cannot be divided. Revisal 1908, § 469; Cromartie v. Parker, 121 N.C. 198, 28 S.E. 297; Morton v. Telegraph Co., 130 N.C. 302, 41 S.E. 484; Edgerton v. Powell, 72 N.C. 64.

2. Another ground of demurrer is that the plaintiffs have no cause of action against the Employers' Liability Assurance Corporation. The question raised by the demurrer has never been decided by this court; and, as the action is dismissed, it is unnecessary to decide it now.

The judgment of the superior court is affirmed.