Underwood v. Dooley

• Decision Date: 17 April 1929
• Docket Number: 214.
• Parties: 197 N.C. 100, 64 A.L.R. 656 v. DOOLEY UNDERWOOD
• Court: North Carolina Supreme Court

147 S.E. 686

197 N.C. 100, 64 A.L.R. 656

UNDERWOOD v. DOOLEY

No. 214.

Supreme Court of North Carolina

April 17, 1929

Appeal from Superior Court, Sampson County; Grady, Judge.

Action by O. E. Underwood against J. E. Dooley. From an order denying defendant's motion to dismiss the action, he appeals. Affirmed.

Judgment for injuries to person or property bars recovery in second action on substantially same cause for different injury.

This action was begun in November, 1927, and is now pending in the superior court of Sampson county. It was heard at September term, 1928, of said court, on defendant's motion that the action be dismissed: (1) For that at the date of its commencement an action against the defendant, begun by the Maryland Casualty Company, upon the same cause of action as that alleged in the complaint in this action, was pending in the superior court of Mecklenberg county, N. C.; and (2) for that, since the commencement of this action, a final judgment has been rendered in said action against this defendant which he has paid and fully satisfied.

From an order denying his motion, defendant appealed to the Supreme Court.

C. H Gover, of Charlotte, for appellant.

Algernon L. Butler, of Clinton, for appellee.

CONNOR J.

On November 7, 1927, the plaintiff, O. E. Underwood, was driving his automobile on Clinton street, in the town of Roseboro Sampson county, N.C. A motortruck, owned by defendant, and driven by one of his employees, collided with plaintiff's automobile, on said street. As the result of said collision, plaintiff's automobile was badly injured; plaintiff also sustained serious personal injuries. In his complaint filed in this action, plaintiff alleges that said collision was caused by the negligence of the driver of said motortruck, and that defendant, as owner of said truck, and as employer of said driver, is liable for his damages caused by said collision. This action, which was begun in the superior court of Sampson county, is for the recovery, only, of damages for the personal injuries sustained by plaintiff and caused by said collision. Plaintiff does not demand in this action judgment that he recover damages for the injuries to his automobile. He does not allege in his complaint that he has suffered damages by reason of the injuries to his automobile; he alleges that by reason of the injuries to his person he has been damaged in the sum of $10,000. He demands judgment for this sum, only.

At the date of said collision, plaintiff's automobile was insured against loss or damage resulting from a collision, by a policy of insurance issued by the Maryland Casualty Company. By the terms of said policy, the Maryland Casualty Company was subrogated to all the rights, claims, and demands which the plaintiff had against the defendant for damages resulting from injuries to said automobile, caused by the negligence of defendant. Within a few days after said collision, and prior to the commencement of this action, the Maryland Casualty Company began an action against the defendant herein in the superior court of Mecklenberg county, N.C. In said action, the Maryland Casualty Company, as plaintiff, demanded judgment that it recover of the defendant the sum for which it would be liable to plaintiff herein, under its policy, as damages to his automobile, resulting from the collision between defendant's truck and said automobile, on November 7, 1927. It alleged that said sum was $2,500; it did not allege that it had paid or adjusted the loss prior to the commencement of said action. After the commencement of said action in the superior court of Mecklenberg county, and before the commencement of this action in the superior court of Sampson county, the Maryland Casualty Company paid to the plaintiff herein the sum of $3,000 in full settlement of the amount for which the said company was liable to plaintiff herein, under its policy, on account of the damage or loss which plaintiff had sustained from the injuries to his automobile. After the commencement of this action, and while the same was pending, at the request of said company, plaintiff executed a formal assignment, in writing, to the said Maryland Casualty Company, of any and all claims and demands which he had against the defendant for or on account of the injuries and damage to his automobile, caused by the collision between said automobile and defendant's truck on November 7, 1927. Thereafter, by consent, a judgment was entered in the action pending in the superior court of Mecklenberg county, wherein the Maryland Casualty Company was plaintiff, and the defendant herein was defendant, that the Maryland Casualty Company recover of the defendant the sum of $1,400 in full settlement of any and all claims which the said company had against said defendant by reason of the cause of action alleged in the complaint in said action. This judgment has been paid by defendant, and duly canceled on the record in the office of the clerk of the superior court of Mecklenberg county.

Upon the foregoing facts, which were made to appear to the court by an amendment to the answer, which defendant filed, by leave of the court, defendant moved that this action be dismissed: (1) For that, at the date of its commencement, an action against the defendant, begun by the Maryland Casualty Company, upon the same cause of action as that alleged in the complaint in this action, was pending in the superior court of Mecklenberg county, N. C.; and (2) for that, since the commencement of this action, a final judgment has been rendered in said action, which defendant has paid and fully satisfied. Defendant's motion was denied; defendant excepted, and appealed to this court.

In the original answer filed by defendant in this action, the allegations of negligence, which constitute plaintiff's cause of action herein, are denied; defendant also pleads, in bar of plaintiff's recovery, his contributory negligence. The facts on which defendant relies to sustain his motion that this action be dismissed appear from his amended answer. They do not appear on the face of the complaint. In Alexander v. Norwood, 118 N.C. 382, 24 S.E. 119, it is said: "Where an action is instituted, and it appears to the Court by plea, answer or demurrer that there is another action pending between the same parties and substantially on the same subject-matter, and that all the material allegations and rights can be determined therein, such action will be dismissed." In Emry v. Chappell, 148 N.C. 327, 62 S.E. 411, it is said: "The general principle of the law is that the pendency of a prior suit for the same thing or, as is commonly said, for the same cause of action between the same parties in a Court of competent jurisdiction will abate a later suit, because the law abhors a multiplicity of suits and will not permit a debtor or a defendant to be harassed or oppressed by two actions, if even substantially alike, to recover the same demand, when the plaintiff in the second action can have a complete remedy by one of them. *** The principle is based upon the supposition that, if the first suit is so constituted as to be effective and available, and also to afford an ample remedy to the plaintiff in the second, the latter is unnecessary and should be dismissed." In Allen v. Salley, 179 N.C. 147, 101 S.E. 545, it is said that when the pendency of another action between the same parties, upon the same subject-matter, in another county, appears upon the face of the complaint, a demurrer on that ground will be sustained; and that when the pendency of such action is made to appear by answer, a motion that the second action be dismissed should be allowed. In J. A. Jones Construction Co. v. Hamlet Ice Co., 190 N.C. 580, 130 S.E. 165, a judgment dismissing the action which was begun in Mecklenberg county, for that another action between the same parties, involving substantially the same subject-matter, was pending in another county, was affirmed, upon the authority of the above-cited cases of Allen v. Salley, Emry v. Chappell, and Alexander v. Norwood.

It is well settled, therefore, by authoritative decisions of this court, that where an action is begun in a court of this state, and it is made to appear to said court, either by demurrer or by answer to the complaint, that at the date of its commencement there was pending in said court, or in any court in this state of competent jurisdiction, another action between the same parti...