Hall v. CarrollAnnotate this Case
116 S.E.2d 459 (1960)
253 N.C. 220
Mattie Estelle HALL, Administratrix of the Estate of Lillie Mae Hall, Plaintiff, v. Harry CARROLL and Champion Paper and Fibre Company, Defendants; John H. Singleton and Ulysses Moore, Additional Defendants. Roberta McMillian MOORE, Administratrix of the Estate of James Arthur McMillian, Plaintiff, v. Harry CARROLL and Champion Paper and Fibre Company, Defendants; John H. Singleton and Ulysses Moore, Additional Defendants.
Supreme Court of North Carolina.
October 19, 1960.
*461 S. Thomas Walton, Asheville, for plaintiffs, appellants.
Van Winkle, Walton, Buck & Wall, by Herbert L. Hyde, Asheville, for defendant Harry Carroll, appellee.
These actions were not brought within two years after the deaths of plaintiffs' intestates. G.S. § 1-53 subd. 4. They are, therefore, barred unless kept alive as continuations of former actions. G.S. § 1-25. The trial court made extensive findings of fact and concluded as a matter of law the present actions are new, and dismissed them.
The court properly found the plaintiffs are the same, but that John S. Singleton, Andrew E. Cox, Sr., and Florence Carroll, original defendants, were omitted, and Champion Fibre Company was added as party defendant. The prayers for recovery were $50,000 in each of the first, and $25,000 in each of the second actions.
In the original complaints specific acts of negligence on the part of Harry Carroll were alleged. Likewise, specific negligent acts were charged against John H. Singleton. The joint and concurrent acts and omissions on the part of the defendants "were and each of them was the proximate cause" of the collision and resulting injury. The plaintiffs' intestates were guest passengers in a vehicle driven by Moore. If the jury should find, therefore, that any negligent act or omission alleged against Carroll was one of the proximate causes of the accident and injury, then a recovery against Carroll would be warranted, even though negligent acts of others may have concurred as a proximate cause. "Accordingly, where several causes combined to produce injuries, a person is not relieved from liability because he is responsible for only one of them." Price v. Gray, 246 N.C. 162, 97 S.E.2d 844, 847.
As was said by the Supreme Court of Oklahoma in Midland Valley R. Co. v. Townes, 179 Okl. 136, 64 P.2d 712, 718, "The defendants in the former action were not sued jointly, but jointly and severally. Plaintiff could have dismissed as to either. The rule is that while the second suit must be for the same cause of action as the first suit, it need not necessarily be against all *462 of the defendants in the first suit unless all were necessary parties to the first suit." To the same effect is Stevens v. Wood, 17 Ga.App. 736, 88 S.E. 413: "Where the first suit was brought against two or more joint tortfeasors, as in the instant case, each of whom was jointly suable but severally liable, all the defendants were not necessary parties to either the first or the second suit."
The rule is that a plaintiff may toll the running of the statute of limitations if within a year after nonsuit he brings another action on the same cause. The allegations constituting the cause must be in substance the same. The parties must be the same. In this case the plaintiffs are the same. The present defendant Carroll is the same defendant as in the first action. The allegations of negligence on his part are the same. They are sufficient to state a cause of action for individual liability on his part. In the original action John H. Singleton was charged with specific acts of negligence which would make him liable also. Consequently the allegations in the first action that the negligent acts of both joined and concurred in producing the injury cannot cancel out and eliminate the several separate acts charged against each.
The plaintiffs' intestates being guest passengers in another vehicle involved in the accident, their personal representatives may maintain an action against any one or more defendants whose negligent acts participated in and proximately caused the harmful result. Neither the elimination nor the addition of one or more of the defendants in the first, constituted the later a new or different action, unless their absence or presence is necessary to the determination of the issues between the plaintiff and the remaining defendant Carroll. However, neither by the elimination of original parties nor the addition of new ones can the liability of the defendant Carroll be enlarged. Davis v. Norfolk-Southern R. Co., 200 N.C. 345, 157 S.E. 11; Trull v. Seaboard Air Line R. Co., 151 N.C. 545, 66 S.E. 586.
The trial court apparently held the present is a new and different action upon the ground that Singleton, Cox, and Florence Carroll were eliminated from the first, and Champion Fibre Company was added in the second action. These facts, under the circumstances of this case, do not constitute the present a new action. The liability of Carroll is not enlarged.
As one of his further defenses the defendant Carroll has alleged the acts of negligence charged against him in the present action are substantially the same as those charged in the original action; that the evidence will be the same, and that his plea of res judicata should be sustained. A plea of res judicata cannot be determined on the pleadings alone, but only after the evidence is presented. Hayes v. Ricard, 251 N.C. 485, 112 S.E.2d 123; Craver v. Spaugh, 227 N.C. 129, 41 S.E.2d 82; DixDowning v. White, 206 N.C. 567, 174 S.E. 451.
The issues between the plaintiffs and the defendant Carroll are now what they have always been. The plaintiffs preserve their right to try them by bringing the present actions within 12 months from the time the judgments of nonsuit were sustained. The defendant's plea of res judicata, however, remains in the case to be passed on after the evidence has been presented.
For the error in dismissing the action as to Carroll, the judgment of the superior court is