Wrenn v. Graham

74 S.E.2d 232 (1953) 236 N.C. 719

WRENN
v.
GRAHAM et al.

No. 672.

Supreme Court of North Carolina.

January 6, 1953.

Adam Younce, Greensboro, for defendant appellant, Howard Oliver Graham.

Huger S. King, Greensboro, for defendant appellee, Kiker & Yount, Inc.

Smith, Sapp, Moore & Smith, Greensboro, for defendant appellee, F. A. Triplett, Inc.

BARNHILL, Justice.

Paragraph 2 of appellant's cross action is as follows:

"2. This defendant herewith repleads paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the further answer and defense hereinabove appearing."

This does not suffice to bring forward and make any allegation in the further defense a part of the cross action. Rule 20(2), Rules of Practice in the Supreme Court, 221 N.C. 557; Guy v. Baer, 234 N.C. 276, 67 S.E.2d 47; Alexander v. Brown, 236 N.C. 212, 72 S.E.2d 522. This being true, the allegations contained in the cross action are insufficient to state a cause of action either against plaintiff or the corporate defendants. But we do not base our decision on that ground, for to do so would merely invite repleading and necessitate another appeal to decide the real question the parties seek to present. That question is this: 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.

Ordinarily only those matters germane to the cause of action asserted in the complaint and in which all the parties have a community of interest may be litigated in the same action. Horton v. Perry, 229 N.C. 319, 49 S.E.2d 734, and cases cited.

"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." Montgomery v. Blades, 217 N.C. 654, 9 S.E.2d 397, 398; Horton v. Perry, supra. It must be in reference to the claim made by the plaintiff and based upon an adjustment of that claim. Coulter v. Wilson, 171 N.C. 537, 88 S.E. 857; Schnepp v. Richardson, 222 N.C. 228, 22 S.E.2d 555. "Each cause of action must relate to one general right. * * * Each must be so germane to it as to be regarded really as a part thereof" and "* * * directed to the same subject matter which constitutes one general right." Pressley v. Great Atlantic & Pacific Tea Co., 226 N.C. 518, 39 S.E.2d 382, 383; Hancammon v. Carr, 229 N.C. 52, 47 S.E.2d 614, 616; Schnepp v. Richardson, supra.

Whether joined in the complaint with another cause of action or pleaded as a cross action, a tort claim relied upon must arise out of the subject of the original or primary action and "The connection must be immediate and direct." Hancammon v. Carr, supra. Questions in dispute among the defendants in an action may not be litigated in that action unless they arise out of the subject of the action as set out in the complaint and have such relation to the plaintiff's claim as that their adjustment is necessary to a full and final determination of that cause. Hulbert v. Douglas, 94 N.C. 128; Schnepp v. Richardson, supra; Montgomery v. Blades, supra. In other words, a plaintiff may not be required to cool his heels in the anteroom while defendants fight out, by cross action, a claim, one against the other, which is independent of and irrelevant to the cause he asserts. Schnepp v. Richardson, supra; Beam v. Wright, 222 N.C. 174, 22 S.E.2d 270.

The roots of the controversy on this appeal are lodged in conflicting interpretations of the term "the same subject of action" as used in G.S. § 1-123, and like terms appearing in our decisions.

"The `subject of the action' means * * the thing in respect to which the plaintiff's right of action is asserted whether it be specific property, a contract, a threatened or violated right, or other thing concerning which an action may be brought and litigation had." Phillips, Code Pleading, 2d Ed., sec. 377, p. 423; Hancammon v. Carr, supra.

While his cause of action, as alleged by him, arose out of the collision of the two automobiles, and proof in respect thereto is essential, the collision is not the subject of plaintiff's action. The personal injuries and property damage suffered by him as a result thereof is the subject of his action and his right to compensation therefor is the claim he asserts. Montgomery v. Blades, supra; Horton v. Perry, supra.

Here, in effect, Graham, in respect to his cross action, makes himself a plaintiff against his codefendants. He is suing on one cause of action while plaintiff alleges an entirely different cause. Plaintiff has no interest in his claim against the corporate defendants and he, as complainant, has no interest in the claim asserted by plaintiff. Had he and plaintiff joined forces and instituted a joint action against the other defendants, it would have clearly constituted a misjoinder of causes and parties. From a practical standpoint, there is no difference in the course he here seeks to pursue. Montgomery v. Blades, supra; Horton v. Perry, supra. He asserts against his codefendants a cause of action which is independent of and irrelevant to the "subject of action" which forms the basis of plaintiff's claim. Hence the order sustaining the demurrers and striking the cross action contained in Graham's answer must be affirmed. Teague v. Siler City Oil Co., 232 N.C. 65, 59 S.E.2d 2.

The appellant, through his counsel, contends that since his cross-action is against plaintiff and his codefendants as joint tortfeasors, the rule stated in the Blades and like cases has no application here. This interesting argument is ingenious but not persuasive. While defendant has the right to litigate in this action all questions pertaining to the cause of action alleged by plaintiff, including the liability of plaintiff for the injuries he—Graham—allegedly suffered as a proximate result of plaintiff's negligence, he may not pursue his claim against the corporate defendants in this action.

Had appellant elected to institute a separate and independent action against plaintiff and the corporate defendants, the trial judge, in his discretion, could have consolidated the two actions for trial. This is a roundabout way to the same end appellant seeks to accomplish here. Nonetheless, the statute does not permit the joinder of the two causes as a matter of right. Whether all persons suffering injury or damage arising out of one and the same motor vehicle collision should be permitted to join as coplaintiffs against the allegedly negligent motorist is for the General Assembly to decide. This Court studiously refrains from making law by judicial fiat. It only applies it as it is written.

The order entered in the court below is affirmed.