Wirth v. Bracey, s. 528

Decision Date11 January 1963
Docket NumberNos. 528,529,s. 528
PartiesHomer WIRTH v. Stewart Monroe BRACEY. Myrtle L. WIRTH v. Stewart Monroe BRACEY.
CourtNorth Carolina Supreme Court

Smith, Leach, Anderson & Dorsett, Raleigh, for defendant-appellant.

Robert A. Spence, Smithfield and Thomas Turner, Greensboro, for plaintiffs-appellees.

BOBBITT, Justice.

Defendant's assignments of error are based on his exceptions to the orders entered by Judge Hall on April 12, 1962, prior to jury trial. Defendant does not attack the manner in which the jury trial was conducted. Indeed, neither the evidence nor the court's charge is in the record on appeal.

The sole question presented by each appeal is whether the court erred in overruling defendant's said pleas in abatement and in bar. The (admitted) facts relevant to this question are: These actions were instituted July 21, 1960. Prior thereto, to wit, on or about June 10, 1960, as authorized by the Tort Claims Act, G.S. Chapter 143, Article 31, each plaintiff had filed with the North Carolina Industrial Commission a claim against the North Carolina Highway Commission to recover on account of injuries and damages sustained in said collision of March 27, 1959, on account of the alleged negligence of Bracey, defendant herein. Based on these facts, defendant pleaded, in abatement of the present actions, the filing and pendency of plaintiffs' said claims with the Industrial Commission; and defendant pleaded, in bar of the present actions, that the filing of plaintiffs' said claims with the Industrial Commission constituted (a) an election of remedies and (b) a waiver and estoppel of their rights to institute the present actions.

When defendant's said pleas were heard by Judge Hall on or about April 12, 1962, and when these actions were tried in May, 1962, there had been no decision or hearing by the Industrial Commission wtih reference to plaintiffs' said claims. Nor does it appear that the Industrial Commission has at any time acted thereon. Questions as to the legal effect, if any, if there had been a hearing and decision by the Industrial Commission prior to the trial of these actions are not presented. Nor does this appeal present questions as to the legal effect, if any, of the judgments herein upon the claims filed by plaintiffs with the Industrial Commission. Here, the fact the said claims had been filed and were pending when these actions were instituted is the basis of defendant's plea in abatement.

The rules applicable when considering a plea in abatement on the ground '(t)here is another action pending between the same parties for the same cause' (G.S. § 1-127 (3)) are stated, with full citation of authority, by Ervin, J., in McDowell v. Blythe Brothers Co., 236 N.C. 396, 72 S.E.2d 860, and by Winborne, J. (later C.J.), in Dwiggins v. Parkway Bus Co., 230 N.C. 234, 52 S.E.2d 892. Later decisions are cited in Perry v. Owens, 257 N.C. 98, 125 S.E.2d 287. Our decisions, beginning with Allen v. Salley, 179 N.C. 147, 101 S.E. 545, relate primarily to a factual situation where the plaintiff in the second action is the defendant in the first and the defendant in the second action is the plaintiff in the first. Here, a different factual situation is involved.

In our opinion, and we so hold, the claim filed by (each) plaintiff with the Industrial Commission did not constitute another action pending between the same parties for the same cause within the meaning of G.S. § 1-127(3).

'Another action,' as used in G.S. § 1-127(3), would seem to refer to an action of like nature, that is, a civil action instituted under and subject to the provisions of the Code of Civil Procedure. The procedure under the Tort Claims Act is suigeneris.

Fundamental differences (apart from differences in procedure) between a claim under the Tort Claims Act and a common law action to recover damages on account of negligence include the following: The maximum amount recoverable under the Tort Claims Act is $10,000.00. G.S. § 143-291. Controverted factual issues (questions) are resolved by the findings of the Industrial Commission, not by jury trial or, upon waiver of jury trial, by the court. There is no provision for the assertion of a counterclaim or cross action.

'The ordinary test for determining whether or not the parties and causes are the same for the purpose of abatement by reason of the pendency of the prior action is this: Do the two actions present a substantial identity as to parties, subject matter, issues involved, and relief demanded?' Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796, 31 A.L.R.2d 436; Pittman v. Pittman, 248 N.C. 738, 104 S.E.2d 880.

The only claim authorized by the Tort Claims Act is a claim against the State agency. True, recovery, if any, must be based upon the actionable negligence of an employee of such agency while acting within the scope of his employment. However, recovery, if any, against the alleged negligent employee must be by common law action. Plaintiffs could obtain no relief against Bracey, defendant herein, under the Tort Claims Act. Compare Perry v. Owens, supra. Thus, even if the claims filed by plaintiffs against the Highway Commission under the Tort Claims Act were considered actions within the meaning of G.S. § 1-127(3), such claims and these actions were not, nor could the...

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19 cases
  • Long v. Fowler
    • United States
    • North Carolina Supreme Court
    • August 13, 2021
    ...our precedent in this case maintains the general principle that the law provides remedies to injured persons. Cf. Wirth v. Bracey , 258 N.C. 505, 508, 128 S.E.2d 810 (1963) ("The obvious intention of the General Assembly in enacting the Tort Claims Act was to enlarge the rights and remedies......
  • Viar v. NC Department of Transp.
    • United States
    • North Carolina Court of Appeals
    • February 3, 2004
    ...this Act." Simmons v. N.C. Dept. of Transportation, 128 N.C.App. 402, 405, 496 S.E.2d 790, 792-93 (1998) (citing Wirth v. Bracey, 258 N.C. 505, 508, 128 S.E.2d 810, 813 (1963)). The Tort Claims Act directs the Industrial Commission to determine whether the plaintiff's claim "arose as a resu......
  • Meyer v. Walls
    • United States
    • North Carolina Supreme Court
    • September 5, 1997
    ...in the Industrial Commission over a claim against an employee of a state agency. We addressed this issue in Wirth v. Bracey, 258 N.C. 505, 507-08, 128 S.E.2d 810, 813 (1963): The only claim authorized by the Tort Claims Act is a claim against the State agency. True, recovery, if any, must b......
  • Givens v. Sellars, 27
    • United States
    • North Carolina Supreme Court
    • February 28, 1968
    ...acting in the scope of his employment; but recovery, if any, against the negligent employee must be by common law action. Wirth v. Bracey, 258 N.C. 505, 128 S.E.2d 810. 'Prior to the enactment of the Tort Claims Act the Highway Commission, as an agency or instrumentality of the State, enjoy......
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