Thigpen v. Kinston Cotton Mills, 151 N.C. 97 (1909)

Oct. 6, 1909 · Supreme Court of North Carolina

151 N.C. 97

ROLAND THIGPEN and ALBERT THIGPEN v. KINSTON COTTON MILLS and THE EMPLOYERS LIABILITY ASSURANCE CORPORATION.

(Filed 6 October, 1909.)

Actions, Misjoinder of — Negligence—Personal Injury-j-L'oss of Son’s Services — Parties—Demurrer.

The joinder of a cause of action brought by a son, an employee, to recover of defendant cotton mill,- his employer, damages for a personal injury alleged to have been caused by the latter’s negligence, with that of the father to recover for the loss of the son’s services alleged to have been caused by the same negligent act, is demurrable on the ground of misjoinder of parties and causes of action. Revisal, sec. 469.

Appeal from W. B. Allen, J., March Term, 1909, of LeNOIR.

Civil action, to 'recover damages for personal injury, beard upon demurrer by bis Honor, W. B. Allen, Judge, at Lenoir Superior Court.

Tbe plaintiffs appealed from a judgment sustaining the demurrer.

6r. V. Oowper and Y. T. Ormond for plaintiffs.

Davis & Davis for Employers’ Liability Assurance Corporation.

Bouse & Land for Cotton Mills.

Brown, J.

This is a suit brought by Roland Thigpen, an infant, and by Albert Thigpen, individually, against the Kinston Cotton Mills and the Employers’ Liability Assurance Corporation (Limited), of London, England, for' injuries received by the plaintiff, Eoland Thigpen, while at work in the cotton mills of the Kinston Cotton Mills.

1. The son sues to recover damages for a personal injury received while working in the cotton mills, alleged to .be due to negligence of the employer. The father is joined in same action and sues to recover of the employer for the loss of his son’s services.

One of the grounds of demurrer is the misjoinder of parties and causes of action.

We think the demurrer was properly sustained and the action dismissed. The son has no interest in the cause of action of the father, and the father has no interest in the cause of action of the son. It is a manifest misjoinder, both of parties and causes of action, and therefore the action cannot be divided. Revisal, sec. 469. Cromartie v. Parker, 121 N. C., 198; Morton v. Telegraph Co., 130 N. C., 302; Edgerton v. Powell, 72 N. C., 64.

2. Another ground of demurrer is that the plaintiffs have no cause of action against the Employers’ Liability Assurance Corporation.

The question raised by the demurrer has never been decided by this Court; and as the action is dismissed it is unnecessary to decide it now. The judgment of the Superior Court is

Affirmed.