Brotherton v. Paramore

169 S.E.2d 36 (1969)

5 N.C. App. 657

David D. BROTHERTON v. William T. PARAMORE.

No. 6926SC355.

Court of Appeals of North Carolina.

August 13, 1969.

*37 Judge Clarkson allowed defendant's motion to dismiss and plaintiff appealed.

Strickland & Robinson, by William G. Robinson, Charlotte, for plaintiff appellant.

Wardlow, Knox, Caudle & Wade, by J. J. Wade, Jr., and Robert Morgan, Atty. Gen., by Fred P. Parker, III, Raleigh, for defendant appellee.

BROCK, Judge.

The Attorney General appears for defendant upon defendant's request as a state employee under G.S. § 143-300.2 et seq.

The defendant, Paramore, and the State Highway Commission are not alleged to be joint tort-feasors; the recovery against the Highway Commission was upon the principle of respondeat superior. There is no negligent conduct alleged against anyone but Paramore and the ultimate liability was his; liability of the Highway Commission is predicated solely upon the principle of respondeat superior. Recovery against it was bottomed upon negligence of Paramore while acting as its employee within the course of his employment.

We think the rationale of the opinion in Bowen v. Iowa Nat. Mutual Insurance Co., 270 N.C. 486, 155 S.E.2d 238, is clearly applicable here. The plaintiff has *38 recovered damages from and has been paid by Paramore's employer for the negligence of Paramore at the time and place in question in this lawsuit; plaintiff cannot now, in an independent action against Paramore, seek to enhance his original recovery.

Plaintiff argues that he should be allowed to proceed with this action because he is constitutionally entitled to trial by jury which he did not receive under the Tort Claims Act. There is no merit in this contention. The immunity of the State against being sued was waived by the State to the extent of and under the conditions set out in the Tort Claims Act. Plaintiff availed himself of this opportunity to proceed against the State; he was not required to do so.

Affirmed.

CAMPBELL and MORRIS, JJ., concur.