Wilson v. Massagee, No. 525.

Docket NºNo. 525.
Citation224 N.C. 705, 32 S.E.2d 335
Case DateDecember 13, 1944
CourtUnited States State Supreme Court of North Carolina

32 S.E.2d 335
224 N.C. 705

WILSON.
v.
MASSAGEE et al.

No. 525.

Supreme Court of North Carolina.

Dec. 13, 1944.


[32 S.E.2d 336]

Appeal from Superior Court, Mecklenburg County; Wm. H. Bobbitt, Judge.

Wrongful death action by Mrs. Verna L. Wilson, as administratrix of the estate of Arthur Evans Wilson, deceased, against Shirley L. Massagee and the Sinclair Refining Company, wherein the Shell Oil Company and the Southern Railway Company were made parties defendant, without notice, upon motion of the original defendants who sought to maintain a cross-action against the added defendants, and wherein the Southern Railway Company filed a motion to strike out the order making it a party defendant and to dismiss the action as to it. From a judgment allowing the motion of the Southern Railway Company, the original defendants appeal.

Judgment affirmed.

Civil action for recovery of damages for alleged wrongful death, G.S. § 28-173, formerly C.S. § 160, to which action Shell Oil Company, a corporation, and Southern Railway Company, a corporation, were made parties defendant, without notice, upon motion of original defendants Shirley L Massagee and Sinclair Refining Com pany, under G.S. § 1-240, formerly C.S. § 618, as amended by Public Laws 1929, Chapter 68, and on their alleged cross action (1) for exoneration for that the injury of which plaintiff complains was directly and proximately caused by the joint and concurrent negligence of Shell Oil Company and Southern Railway Company, and (2) for contribution for that if original defendants be held actionably negligent, the joint and concurrent negligence of Shell Oil Company and Southern Railway Company was also a proximate cause of the injury resulting in death of intestate of plaintiff, thereby entitling original defendants to invoke against Shell Oil Company and Southern Railway Company the provisions of C.S. § 618, amended as above stated, now G.S. § 1-240, heard upon motion of Southern Railway Company, on special appearance, to strike out the order making it a party defendant as above stated, and to dismiss the action as to it.

The complaint of plaintiff alleges, in part, and summarily stated, that the injury to and death of plaintiff's intestate proximately resulted from the joint and concurrent negligence of the original defendants, as specified, when on January 29, 1944, at a place known as Friendship, North Carolina, about seven miles from Greensboro, on the Southern Railway track from Greensboro to Winston Salem, North Carolina, a truck of defendant Sinclair Refining Company, driven by defendant Shirley L. Massagee and filled with gasoline, collided with a certain passenger train of the Southern Railway Company operated by said intestate as engineer.

Then the original defendants, in pertinent parts of their cross action allege that: "2. The Southern Railway Company is a corporation organized, existing and doing business under the laws of the State of Virginia and is engaged in the operation of an interstate railway system over a considerable portion of the United States. Said company maintains a line of railway tracks from Greensboro, North Carolina, to Winston Salem, North Carolina, over which it operates trains as a part of its interstate system of railways". And "6. The plaintiff's intestate was injured and burned in the collision referred to in plaintiff's complaint, and the death of plaintiff's intestate was caused directly and proximately by the joint and concurring negligence of the Shell Oil Company and

[32 S.E.2d 337]

Southern Railway Company, and not by any negligence of these defendants" in manner specified.

The grounds for the motion of the Southern Railway Company here pertinent are:

"3. That, at the time and on the occasion referred to in the pleadings, the Southern Railway Company was engaged in interstate commerce and the plaintiff's intestate, as an employee of said Southern Railway Company, was employed in interstate commerce, and while so employed was operating the train referred to in the pleadings.

"4. That the rights and obligations of the plaintiff's intestate and the Southern Railway Company arose out of and are exclusively controlled and defined by the Federal Employers' Liability Act, the said Act being exclusive of all other rights and remedies between said parties in the premises.

"5. That under said Federal Act, the plaintiff's intestate is the only person having any right or remedy against the Southern Railway Company by reason of the injury or death of the plaintiff's intestate; and that, consequently, neither the Sinclair Oil Company, nor any party other than the plaintiff's intestate has any right to institute suit against the said Southern Railway Company by reason of the injury or death of the plaintiff's intestate.

"6. That any right which the plaintiff has against the Southern Railway Company, by reason of the death of her intestate, arose out of, and is exclusively controlled by, the Federal Employers' Liability Act; that any right which the plaintiff's intestate has against the Sinclair Oil Company by reason of the things and matters alleged in the complaint arose out of G.S. § 28-173, and that the Southern Railway Company and the Sinclair Oil Company could not be joint tort-feasors in reference to the plaintiff's intestate within the meaning of G.S. § 1-240."

When the motion of the Southern Railway Company came on for hearing and being heard at time and place named, by consent of all parties, upon pleadings and affidavits appearing in the record, and after argument of counsel, the court finds the following facts:

"1. That this action was instituted by the plaintiff, Mrs. Vera L. Wilson, as Ad ministratrix of the Estate of Arthur E. Wilson, deceased, against Shirley L. Massagee and Sinclair Refining Company to recover damages for the alleged wrongful death of plaintiff's intestate, as appears from the complaint herein.

"2. That the original defendants above named, in their answer, set up a cross action against the Shell Oil Company and the Southern Railway Company, as appears in the record herein, and obtained an order of the Clerk dated August 24, 1944, making the said Southern Railway Company and Shell Oil Company parties defendant, and, pursuant to said order, summons was duly issued and served upon said additional defendants, and that the court has jurisdiction of said defendants.

"3. That within thirty days from the date of service of summons upon it, the said Southern Railway Company filed its special appearance and motion as appears in the record.

"4. That the above mentioned order of the Clerk making said additional defendants was entered without notice to said additional defendants.

"5. That at the time of the collision referred to in the complaint herein, and in the cross action of Shirley L. Massagee and Sinclair Refining Company against the Southern Railway Company, this being the time of the injury to the plaintiff's intestate which caused his death, the said plaintiff's intestate was in the employ of the Southern Railway Company as the engineer on the train referred to in the pleadings herein; and that at said time the said Southern Railway Company was engaged, and the plaintiff's intestate was employed, in interstate commerce."

Upon these facts and upon the...

To continue reading

Request your trial
27 practice notes
  • Hayes v. City of Wilmington, No. 169
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 29, 1956
    ...§ 1-240. Freeman v. Thompson, 216 N.C. 484, 5 S.E.2d 434; Lackey v. Southern Ry. Co., 219 N.C. 195, 13 S.E. 2d 234; Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335, 156 A.L.R. 922. 3. When an alleged joint tortfeasor is brought into a case as an additional party defendant, and it turns out ......
  • Adler's Quality Bakery, Inc. v. Gaseteria, Inc., No. A--77
    • United States
    • United States State Supreme Court (New Jersey)
    • March 22, 1960
    ...Wildwood, 23 N.J.Super. 379, 92 A.2d 873 (Law.Div.1952), both discussed Supra, are explainable in the same manner. In Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335, 156 A.L.R. 922 (Sup.Ct.1944), plaintiff in contribution, liable to the injured person's administratrix by virtue of the stat......
  • Webb v. Eggleston, No. 98.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • March 17, 1948
    ...v. Southern R. Co, 202 N.C. 256, 162 S.E. 613; Whitehead & Anderson, Inc. v. Branch, 220 N.C. 507, 17 S.E.2d 637; Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335, 156 A.L.R. 922. The personal representative of a deceased person whose death was caused by the wrongful or negligent act of anot......
  • Hayes v. City of Wilmington, No. 593
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • January 15, 1954
    ...v. Thompson, 216 N.C. 484, 5 S.E.2d 434; [239 N.C. 243] Lackey v. Southern Ry. Co., 219 N.C. 195, 13 S.E.2d 234; Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335, 156 A.L.R. Therefore, to retain the additional defendants as parties to the pending action, it must be made to appear that Cooper......
  • Request a trial to view additional results
27 cases
  • Hayes v. City of Wilmington, No. 169
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 29, 1956
    ...§ 1-240. Freeman v. Thompson, 216 N.C. 484, 5 S.E.2d 434; Lackey v. Southern Ry. Co., 219 N.C. 195, 13 S.E. 2d 234; Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335, 156 A.L.R. 922. 3. When an alleged joint tortfeasor is brought into a case as an additional party defendant, and it turns out ......
  • Adler's Quality Bakery, Inc. v. Gaseteria, Inc., No. A--77
    • United States
    • United States State Supreme Court (New Jersey)
    • March 22, 1960
    ...Wildwood, 23 N.J.Super. 379, 92 A.2d 873 (Law.Div.1952), both discussed Supra, are explainable in the same manner. In Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335, 156 A.L.R. 922 (Sup.Ct.1944), plaintiff in contribution, liable to the injured person's administratrix by virtue of the stat......
  • Webb v. Eggleston, No. 98.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • March 17, 1948
    ...v. Southern R. Co, 202 N.C. 256, 162 S.E. 613; Whitehead & Anderson, Inc. v. Branch, 220 N.C. 507, 17 S.E.2d 637; Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335, 156 A.L.R. 922. The personal representative of a deceased person whose death was caused by the wrongful or negligent act of anot......
  • Hayes v. City of Wilmington, No. 593
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • January 15, 1954
    ...v. Thompson, 216 N.C. 484, 5 S.E.2d 434; [239 N.C. 243] Lackey v. Southern Ry. Co., 219 N.C. 195, 13 S.E.2d 234; Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335, 156 A.L.R. Therefore, to retain the additional defendants as parties to the pending action, it must be made to appear that Cooper......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT