Citation Numbers: 136 S.E. 246, 193 N.C. 17, 1927 N.C. LEXIS 269
Judges: Clarkson
Filed Date: 1/12/1927
Status: Precedential
Modified Date: 11/11/2024
The material facts will be stated in the opinion. This is an action for actionable negligence and to set aside a release alleged to have been procured by fraud, brought by J. B. Killian, administrator of Roy Killian. Two causes of action are set forth in the complaint:
(1) The first cause of action is against the defendant, J. Hanna, for damages, who it is alleged in the complaint, through gross negligence and reckless driving, which was the proximate cause, killed Roy Killian, *Page 18 plaintiff's intestate, at the highway intersection in the village of Chocowinity, Beaufort County, N.C. on or about 6 November, 1925.
(2) The second cause of action is a repetition of the first cause of action for damages against the defendant, J. Hanna, for the negligent killing of plaintiff's intestate and against all the defendants for alleged fraud. The defendant, J. Hanna, had indemnity insurance against loss in defendant Georgia Casualty Co. It is alleged through fraud, in which all the defendants actively participated, with knowledge of the facts — gross negligence and reckless driving — as to how plaintiff's intestate was killed, they had the plaintiff, an illiterate man who could neither read nor write, to qualify as administrator and take $500 as a contribution or donation to the family of the deceased, which was tendered back and the release or receipt asked to be canceled, which turned out to be in full settlement of liability. All the allegations of fraud are fully alleged and set forth (Stone v. Milling Co.,
The defendant, Hanna, demurs to the complaint on the ground: (1) "The complaint does not set forth facts sufficient to constitute a cause of action against this defendant in the second alleged cause of action"; (2) misjoinder of causes; (3) misjoinder of parties.
The other defendants demur: (1) That the complaint does not set forth facts sufficient to constitute a cause of action; (2) that there is a misjoinder of causes of action; (3) that there is a misjoinder of parties defendant. We think that none of the grounds of the demurrers can be sustained.
In the first cause of action, J. B. Killian, plaintiff administrator, alleges an action for damages against J. Hanna for actionable negligence for the death of his intestate. The facts are fully set forth. This cause of action is not demurrable. In the second cause of action plaintiff anticipated that defendant, J. Hanna, and the defendant, Georgia Casualty Co. — Hanna having indemnity insurance against loss in the company — and the other defendants, agents of Georgia Casualty Co., C. V. DeVault and W. H. Little, all of whom it is alleged were active in getting an alleged release from plaintiff administrator, would set this so called release up in the answer as a bar to the action. Plaintiff alleges this release was obtained by fraud on the part of all the defendants, and asked that it be canceled. If the release was procured without fraud, this ends plaintiff's cause of action for actionable negligence. If it was procured by fraud, then plaintiff proceeds with his actionable negligence cause of action against J. Hanna.
In Griffin v. Baker,
C. S., 456, is as follows: "Any person may be made a defendant who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved," etc.
C. S., 507. "The plaintiff may unite in the same complaint several causes of action, of legal or equitable nature, or both, where they all arise out of: (1) The same transaction, or transaction connected with the same subject of action; (3) injuries with or without force to person or property. . . . But the causes of action so united must all belong to one of these classes, and, except in actions for the foreclosure of mortgages, must affect all the parties to the action, and not require different places of trial, and must be separately stated."
C. S., 535, is as follows: "In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties."
In Sewing Machine Co. v. Burger,
In Chemical Co. v. Floyd, 158 N.C. at p. 461, where many cases are cited, there was held no misjoinder of parties defendant and causes of action. The facts in that case are "The cause of action is the recovery of the value of the property misappropriated, and one of the remedies sought to be enforced is the setting aside of certain deeds alleged to have been executed fraudulently by one of the defendants. . . . (p. 462) to join a cause of action on a note of whom it was alleged the debtor had executed a fraudulent deed (Bank v. Harris,
In Carswell v. Talley,
On the question of misjoinder of parties defendant, the defendants cite the following cases: Clark v. Bonsal,
Shore v. Holt,
We think the court below made no error in overruling the demurrers.
For the reasons given, the judgment of the court below is
Affirmed. *Page 21
Thigpen v. Kinston Cotton Mills , 151 N.C. 97 ( 1909 )
Clark v. Bonsal & Co. , 157 N.C. 270 ( 1911 )
Newton v. . Seeley , 177 N.C. 528 ( 1919 )
Roberts v. Utility Manufacturing Co. , 181 N.C. 204 ( 1921 )
Stone v. Doctors' Lake Milling Co. , 192 N.C. 585 ( 1926 )
Robinson v. . Williams , 189 N.C. 256 ( 1925 )
Dawson Bank v. Harris , 84 N.C. 206 ( 1881 )
Causey v. . Guilford County , 192 N.C. 298 ( 1926 )