Atkins v. Steed, 208 N.C. 245 (1935)

May 22, 1935 · Supreme Court of North Carolina

208 N.C. 245

JOE L. ATKINS, JR., v. H. N. STEED et al.

(Filed 22 May, 1935.)

Pleadings D b — Held: Demurrer for misjoinder of parties and causes should hare been sustained in this case.

An action brought against the driver of an automobile alleging that such driver struck the car upon which plaintiff was riding on the running board, knocking plaintiff off the car to the highway, and against the driver of a second car alleging that while plaintiff was lying or sitting on the highway in an unconscious condition as the result of the first accident, the driver of the second car negligently hit plaintiff, resulting in further injuries, is held properly dismissed upon demurrer for misjoinder of parties and causes of action, since the complaint alleges two separate injuries caused by different parties.

Appeal by defendants from Clement, J., at December Term, 1934, of Mooee.

Civil action to recover damages for personal injuries.

Tbe complaint alleges:

1. Tbat on 30 August, 1934, about 8.T5 p.m., Joe L. Atkins, Jr., was standing and riding on tbe left running board of an automobile traveling on Highway No. 75, near tbe town of Cartbage, when tbe defendant H. N. Steed, driving a Chevrolet automobile in tbe opposite direction on said highway, negligently “drove said Chevrolet automobile against tbe left side of tbe automobile on which plaintiff was riding, thereby bruising and knocking tbe said Joe L. Atkins, Jr., off tbe running board of said automobile on tbe bard-surfaced highway several feet from tbe car on which be was riding.”

2. Tbat tbe defendant Gordon Brown, was driving an automobile upon tbe highway just a short distance back of tbe car driven by IT. N. Steed, and tbat “while tbe said Joe L. Atkins, Jr., was about tbe middle of said highway sitting or lying bleeding and in an unconscious condition from tbe blow which be bad just previously received from tbe automobile of tbe defendant H. N. Steed,” tbe said Gordon Brown negligently “drove bis automobile onto and against tbe said Joe L. Atkins, Jr., with great force and violence, knocking, pushing, and dragging him over tbe bard-surfaced highway,” etc.

3. Tbat as a result of tbe “negligent acts of tbe defendants aforesaid,” tbe plaintiff bas been greatly injured, wherefore be prays, etc.

Separate demurrers interposed by tbe defendants on grounds of mis-joinder of parties and causes of action. Demurrer overruled; exceptions.

Tbe defendants appeal, assigning errors.

M. G. Boyette for plaintiff.

U. L. Spence and W. D. Sabislon, Jr., for defendant Steed.

W. Duncan Matthews for defendant Brown.

Stacy, C. J.

Tbe plaintiff bas sued for two injuries, not,one. He declares on different causes of action against different parties. He incorporates these in tbe same complaint. Tbe pleading is bad as against a demurrer. Lucas v. Bank, 206 N. C., 909, 174 S. E., 301; Grady v. Warren, 201 N. C., 693, 161 S. E., 319; Shuford v. Yarbrough, 198 N. C., 5, 150 S. E., 618; Bank v. Angelo, 193 N. C., 576, 137 S. E., 705; Rose v. Warehouse Co., 182 N. C., 107, 108 S. E., 389; Roberts v. Mfg. Co., 181 N. C., 204, 106 S. E., 664.

Where dual misjoinders occur of both parties and causes of action, and a demurrer is accordingly interposed, tbe decisions are to tbe effect tbat tbe demurrer should be sustained and tbe action dismissed. Lucas v. Bank, supra.

Tbe case of Hodgin v. Public Service Corp., 179 N. C., 449, 102 S. E., 748, cited and relied upon by plaintiff, is not in point, or controlling, as no demurrer was interposed in tbat case, and tbe question now presented was not discussed.

Reversed.