Johnson v. Cleveland County Board of Education , 241 N.C. 56 ( 1954 )

84 S.E.2d 256 (1954) 241 N.C. 56

R. A. JOHNSON, Administrator of the Estate of Billy Joe Johnson,
v.
CLEVELAND COUNTY BOARD OF EDUCATION and/or North Carolina Board of Education.

No. 305.

Supreme Court of North Carolina.

November 3, 1954.

Harry McMullan, Atty. Gen., Claude L. Love, Asst. Atty. Gen., and Gerald F. White, of Staff, Raleigh, for defendants-appellants.

R. L. Elam and J. C. Whisnant, Shelby, for plaintiff-appellee.

BARNHILL, Chief Justice.

We observe with disfavor that the and/or method of naming the defendants in the captions to the summons and pleadings filed has been adopted in this cause. The question immediately arises: Does plaintiff seek recovery against the County Board of Education or the State Board or against both defendants? When a judge of the Superior Court acquires jurisdiction of the parties and the subject matter in pending litigation, any judgment or decree entered by him becomes res judicata as to the parties and all their privies. Hence, more exactitude in naming those who are defendants is required. Gibson v. Central Mfrs' Insurance Co., 232 N.C. 712, 62 S.E.2d 320, and cases cited; State v. McLamb, 236 N. C. 287, 72 S.E.2d 656; State v. Daughtry, 236 N.C. 316, 72 S.E.2d 658.

When Patton, S. J., on defendants' first appeal to the Superior Court, sustained the exceptions of defendants, plaintiff's remedy was by appeal to this Court. In the meantime, pending the disposition of the appeal, the Commission was bound by the order entered in the Superior Court. Although it is patent that a majority of the Commission are "of the same opinion still," it was their duty to bow to superior authority and eliminate those findings Patton, S. J., concluded are not supported by any competent evidence. Instead, they rephrased the language of the original findings, readopted them as so rephrased, made additional findings, concluded "that the proximate cause of the death of this child was the conduct of the school bus driver originating with excessive speed and ending with his unexplained failure to reduce his speed and protect the door handle after discovering the perilous position occupied by the boy," and again awarded plaintiff $8,000.

Thus the facts found are in substance the same and the questions presented are identical.

The record is devoid of any competent evidence tending to support the crucial findings made by the Commission on the question of negligence. The bus was one of the newer type, and its door mechanism operated more easily than on the older type bus. Yet it took "sustained pressure" on the door lever to cause it to open. So all the witnesses testified. There is no evidence in the record tending to show that this mechanism was loose or that a jolt or jar would cause the door to open or that the door or door lever was in the slightest state of disrepair.

Nor is there any evidence of speed or other want of due care on the part of the bus operator. The bus had just been put in motion after stopping to pick up a passenger. It could not have attained any considerable speed at the time the mishap occurred, and no witness undertook to testify that it had.

When the deceased left his seat and walked to the front of the bus, both the bus driver and his companion told him to return to his seat. Even if we concede that the bus driver, on proper occasion, was vested with authority to use physical force to compel the deceased to return to his seat, that occasion had not arisen when the unfortunate accident occurred.

It follows that the court below erred in overruling the defendants' exceptions to the findings of fact made by the Commission. It will now remand the cause to the Commission with direction that it enter judgment denying the claim of plaintiff and dismissing the action. To that end the judgment entered in the court below is

Reversed.