Morgan v. Brooks , 241 N.C. 527 ( 1955 )

85 S.E.2d 869 (1955) 241 N.C. 527

John Daniel MORGAN, Plaintiff,
v.
Harold F. BROOKS, Original Defendant, and Virgil Lee Millsap, Additional Defendant.

No. 24.

Supreme Court of North Carolina.

March 2, 1955.

Price & Osborne and J. C. Johnson, Jr., Leaksville, for plaintiff.

Jordan & Wright, Greensboro, for defendant Harold F. Brooks.

DENNY, Justice.

We shall first consider the appeal of the plaintiff. The judgment of the court below, sustaining the demurrer ore tenus to the plaintiff's pleadings, is tantamount to an order to the effect that the plaintiff may not now assert any claim he might have against Harold F. Brooks, as a result of the collision which occurred on 5th September, 1951, since he failed to file a cross-action against Brooks in the suit instituted by Beatrice Morgan, in which action Brooks brought him in as an additional party defendant.

The appellant Brooks is relying upon our decision in the case of Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796, 31 A.L.R. 2d 436, to sustain the ruling of the court below. In order to interpret an opinion of this Court correctly, it should be considered in the light of the facts in the particular case in which it was delivered. Brown v. Hodges, 233 N.C. 617, 65 S.E.2d 144, and cited cases.

In Cameron v. Cameron, supra, the plaintiff Bruce B. Cameron instituted an action for divorce, on the ground of two years' separation, against his wife, Mary Vail Cameron, in New Hanover County. At the time of the institution of the action, there was pending in the Superior Court of Sampson County an action instituted by Mrs. Cameron against her husband for divorce from bed and board under G.S. § 50-7, subd. 1 upon the ground that her husband had abandoned her. We held the second action was not maintainable since he could, with the permission of the court, if he desired to do so, set up his alleged cause of action for divorce in a cross-action against the plaintiff in the action pending in Sampson County. Moreover, a verdict on the merits in the Sampson County case would have been determinative of the question as to whether or not he was entitled to the relief he sought in the action instituted in New Hanover County. Ervin, J., in speaking for the Court in the above case, said [235 N.C. 82, 68 S.E.2d 798]: "The ordinary test for determining whether or not the parties and causes of action 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? * * * This test lends itself to ready application where both actions are brought by the same plaintiff against the same defendant, or where the plaintiff in the second action, as defendant in the first, has actually pleaded a counterclaim or cross demand for the same cause of action. The ordinary test of identity of parties and causes is not appropriate, however, when the parties to the prior action appear in the subsequent action in reverse order, and the plaintiff in the second action, as defendant in the first, has failed to plead a counterclaim or cross demand for the same cause of action. Under the law, a defendant. who has a claim available by way of counterclaim or cross demand, has an election to plead it as such in the original action, or to reserve it for a future independent action, unless the claim is essentially a part of the original action and will necessarily be adjudicated by the judgment in it. * * * As a consequence, the general rule is that a subsequent action is not abatable on the ground that the plaintiff therein might obtain the same relief by a counterclaim or cross demand in a prior action pending against him." (Italics ours.)

The facts in the instant case are not like those in the Cameron case. Beatrice Morgan, in so far as the record before us discloses, did not set up any action against John Daniel Morgan. Therefore, when he was brought in as an additional party defendant by Brooks, he was under no legal obligation to set up a crossaction against Brooks for any claim he had against him as a result of the collision which occurred on 5th September, 1951. However, since he was made an additional party defendant upon motion of Brooks, he could, had he desired to do so, have set up such an action against him, and Brooks could not have had it dismissed had he desired to do so. Grant v. McGraw, 228 N.C. 745, 46 S.E.2d 849; Powell v. Smith, 216 N.C. 242, 4 S.E.2d 524. But, on the other hand, if Morgan had been made an additional party defendant in the Beatrice Morgan case by someone other than Brooks, and he had filed a crossaction against Brooks, such cross-action would have been subject to dismissal upon motion of Brooks. Wrenn v. Graham, 236 N.C. 719, 74 S.E.2d 232; Horton v. Perry, 229 N.C. 319, 49 S.E.2d 734; Montgomery v. Blades, 217 N.C. 654, 9 S.E.2d 397, 398.

In the last cited case, Devin, J., later Chief Justice, said: "The general rule seems to have been established by the decisions of this court that one defendant, jointly sued with others, may not be permitted to set up in the answer a cross-action not germane to the plaintiff's action. A cause of action arising between defendants not founded upon or necessarily connected with the subject matter and purpose of the plaintiff's action should not be engrafted upon the action which the plaintiff has instituted. In order that a cross-action between defendants may be properly considered as a part of the main action, it must be founded upon and connected with the subject matter in litigation between the plaintiff and the defendants. * * * Section 602 of the Consolidated Statutes [now G.S. § 1-222] provides that ``judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may determine the ultimate rights of the parties on each side, as between themselves.' This permits the determination of questions of primary and secondary liability between joint tortfeasors, but it may not be understood to authorize the consideration of cross-actions between defendants as to matters not connected with the subject to the plaintiff's action."

In Wrenn v. Graham, supra [236 N.C. 719, 74 S.E.2d 233], in which this Court was considering the identical question now before us, Barnhill, J., now Chief Justice, said: "In an action founded on allegations of negligence, may one of the three defendants file and prosecute a cross action against his codefendants to recover compensation for personal injuries and property damage which he alleges arose out of and were proximately caused by the same automobile collision out of which plaintiff's cause of action arose? The statute, G.S. § 1-123, and our decisions thereunder answer in the negative."

In light of our decisions, we hold the plaintiff's exception to the ruling of the court below in sustaining the demurrer ore tenus and dismissing the action is well taken and will be upheld.

Defendant's Appeal

The defendant Brooks appeals from the denial of his motion to permit him to set up the judgment entered in the case of Brooks v. Morgan, 27 N.C. 481, as res judicata as to the matters and things alleged in the present action. The defendant Brooks was not a party to the action brought by his wife in Guilford County. Moreover, it may be that in the trial of this case, an entirely different set of facts, as to the manner in which the collision between the two automobiles occurred, may be developed, either by additional evidence or by the estimate placed upon the evidence by the jury. Therefore, the ruling of the court below will be upheld on authority of our decisions in Meacham v. Larus & Bros. Co., 212 N.C. 646, 194 S.E. 99, and Carolina Power & Light Co. v. Merrimack Insurance Co., 238 N.C. 679, 79 S.E.2d 167.

On plaintiff's appeal—reversed.

On defendant's appeal—affirmed.