Watters v. Parrish

• Decision Date: 30 June 1960
• Docket Number: No. 462,462
• Citation: 115 S.E.2d 1,252 N.C. 787
• Parties: Barbara WATTERS, by and through her Next Friend, V. Gregg Watters, v. Homer Lloyd PARRISH, Mattie Lee Parrish, Harry W. Lawrence and Harry E. Lawrence, and Harry E. Lawrence, Guardian Ad Litem for Harry W. Lawrence.
• Court: North Carolina Supreme Court

Page 1

115 S.E.2d 1

252 N.C. 787

Barbara WATTERS, by and through her Next Friend, V. Gregg Watters, v. Homer Lloyd PARRISH, Mattie Lee Parrish, Harry W. Lawrence and Harry E. Lawrence, and Harry E. Lawrence Guardian Ad Litem for Harry W. Lawrence.

No. 462

Supreme Court of North Carolina.

June 30, 1960

Leath & Blount, Rockingham, for Homer Lloyd Parrish and Mattie Lee Parrish, defendants-appellants.

Smith, Moore, Smith, Schell & Hunter, McNeill Smith, David McK. Clark, Greensboro, and Z. V. Morgan, Hamlet, for Harry W. Lawrence and Harry E. Lawrence, defendants-appellants.

Webb & Lee and W. G. Pittman, Rockingham, for plaintiff-appellee, on the appeal of defendants Lawrence and Parrish.

PARKER, Justice.

The instant case was commenced by the issuance of summons on 28 May 1959, which was served on all the defendants, except Harry E. Lawrence as guardian ad litem of his son, Harry W. Lawrence, on 1 June 1959. Summons was issued against Harry E. Lawrence as guardian ad litem of his son, Harry W. Lawrence, on 17 July 1959 and served on him the same day. Harry W. Lawrence, by his next friend, Harry E. Lawrence, instituted an action by the issuance of summons on 15 June 1959 in Richmond County Superior Court to recover damages for personal injuries in the collision here against defendants Parrish, and which was served on defendants Parrish the next day. Frank Williams, a passenger in the pickup truck driven by Homer Lloyd Parrish, instituted by the issuance of summons on 26 March 1959 in the same county a similar action against defendants Parrish, and which was served on defendants Parrish the next day. None of these summonses were in the record. We had them certified here by the lower court.

Immediately prior to the trial of the instant case Harry W. Lawrence made a motion that the court place his case against defendants Parrish on the civil issue docket for trial before the trial of the instant case and of the Frank Williams case, and that plaintiff here and Frank Williams be restrained from bringing their cases to trial, until his case against defendants Parrish is finally determined. The trial court, in its discretion, denied the motion. Harry W. Lawrence assigns this as error, and contends in his brief that any judgment here against both defendants would be res judicata in his action against the Parrishes, and no prejudice could come to the plaintiff here if his case is tried first, since she is not a party to it, and that 'the trial judge abused his discretion in refusing the continuance.'

A motion for a continuance is addressed to the sound discretion of the trial judge, and, in the absence of manifest abuse, his ruling thereon is not reviewable. Hayes v. Ricard, 251 N.C. 485, 112 S.E.2d 123; Sykes v. Blakey, 215 N.C. 61, 200 S.E. 910; Piedmont Wagon Co. v. Bostic, 118 N.C. 758, 24 S.E. 525.

A trial court is vested with wide discretion in setting for trial and calling for trial cases pending before it. Jones v. Jones, 94 N.C. 111; Abernethy v. Burns, 206 N.C. 370, 173 S.E. 899; 88 C.J.S. Trial § 31.

Whether one lawsuit will be held in abeyance to abide the outcome of another rests in the sound discretion of the trial judge, and his action will not be disturbed on appeal, unless the discretion has been abused, for there is power inherent in every court to control the disposition of causes on its docket with economy of time and effort for itself, for counsel, and for litigants. 53 Am.Jur., Trial, § 14, § 15 and § 16. 'The suppliant for a stay must make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to some one else. Only in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both. ' Landis v. North American Co., 299 U.S. 248, 57 S.Ct. 163, 166, 81 L.Ed. 153.

Plaintiff in the instant case commenced her action before Harry W. Lawrence did his, and alleged in her complaint that she was grievously injured by his negligence and the negligence of Homer Lloyd Parrish. Our study of the record fails to disclose any unusual or extraordinary circumstances or any clear case of hardship or inequity to Harry W. Lawrence that would have justified the trial judge in continuing plaintiff's case here, and requiring her to sit by with folded arms until Harry W. Lawrence had reached a final determination of his action against Homer Lloyd Parrish and wife. Harry W. Lawrence has not shown that Judge Phillips manifestly abused his discretion in denying his motion. His assignment of error in that respect is overruled. See 88 C.J.S. Trial § 33 a, Advancement or Preference of Cases.

During the trial all the defendants offered evidence. All the defendants assign as error the denial of their motions for judgments of nonsuit renewed at the close of all the evidence. Defendants Parrish and defendants Lawrence filed separate briefs.

About 3:45 p. m. on Sunday, 4 January 1959, plaintiff, a 20-year-old girl, was a passenger in a Chevrolet automobile driven by her friend, Harry W. Lawrence, and travelling in a westerly direction on the County Home Road near the town of Hamlet. This is a hard-surfaced road about 18 feet wide with a marked center line, which has 6 to 8 feet sand and gravel shoulders. At the same time and place Homer Lloyd Parrish, with a passenger, Frank Williams, was driving a pickup truck in an easterly direction on this road. It was a pretty day, and the road was dry. The road at the scene of the collision was fairly level and straight. No other automobile was near the scene of the collision when it occurred, except an automobile some 150 or 200 feet behind Parrish's pickup truck.

Plaintiff's evidence, including the testimony of defendant Harry W. Lawrence called by plaintiff as a witness for herself against the defendants Parrish, and the testimony of John A. Cartwright a witness for the defendants Lawrence who was travelling some 150 or 200 feet behind the Parrish truck, shows the following facts as to Homer Lloyd Parrish's operation of his pickup truck: At the place where the Hospital Road and the County Home Road intersect, there is a traffic light with a traffic island. When Parrish turned his truck to enter the County Home Road, he drove over the traffic island, and in turning right into the County Home Road went over to the asphalt, not really an island, more of an abutment, before proceeding down the County Home Road. In going down the road he drove several times over the center line, and just before the collision his truck made a wide sweep over on the left side of the road and went off on the shoulder. When Parrish's truck approached the Lawrence automobile, the Parrish truck was on its left side of the road half off on the left shoulder coming directly toward the Lawrence automobile. The Parrish truck continued to approach the Lawrence automobile in this manner, until the Lawrence automobile was 75 to 100 feet away. This is the testimony of Harry W. Lawrence: 'He was coming down my side of the road and was on my right coming directly toward me. I was back down the highway traveling from east going west. This truck was coming at me on my side of the road and half off on my shoulder and was coming at me on my side of the road halfway off my side of the road, and if I had cut this way, it appeared to me at the time that he would have run directly into the side of me; and if I had gone straight, he would have run head-on. The only choice that I had at the time was to go over there to try to get out of his way because he had my side of the highway. I could not say how far he was away when I first saw him, but I do know that I was on my right side of the road. If we did not turn to the side of the road on which the accident happened simultaneously, then I turned first; I do not know exactly which of us turned first. I know that when I turned over there, he was still on my side of the road. At that time I turned, I'd say he was 75 to 80 feet down the road. It could not have been as much as 150 feet. ' The two automobiles collided in about the middle of the road, according to John A. Cartwright, on Parrish's side of the road, according to plaintiff's own testimony, and the testimony of Frank Williams.

Patrolman J. B. Pierce, a witness for defendants Lawrence, immediately after the collision and at the scene saw Homer Lloyd Parrish, who had a strong odor of alcohol on his breath. In Pierce's written report of his investigation of the collision he stated that Parrish's ability was impaired by reason of the fact he had been drinking.

In the collision Homer Lloyd Parrish suffered, inter alia, one broken knee and a badly gashed knee. Some 45 minutes or an hour and 15 minutes after the wreck, Rex Howell, Captain on the Hamlet Police Force and a witness for defendants Lawrence, saw Parrish in the Hamlet Hospital. When Howell got to the hallway next to the operating room, he heard loud, boisterous and profane language. When Howell went in the operating room, Dr. James asked him to hold Parrish on the operating table as he was trying to sew up his knees and he couldn't keep him still long enough to do it. He smelled the odor of alcohol on Parrish's breath. When Howell came in, Parrish quieted down.

Plaintiff's testimony in respect to the collision is as follows in substance: She and Harry W. Lawrence had been dating each other for three years. It was the last day of her Christmas vacation, for she was to return to college that afternoon. They were riding around this Sunday afternoon and talking. She was sitting about six or seven inches from the door with her knees on the seat facing Harry, who was driving. When Harry yelled 'look out,' she turned and saw the old Parrish truck about 200 feet away coming down the road cutting to its left. She put her hand over her face, and threw her...