Powell v. Smith, 216 N.C. 242 (1939)

Sept. 27, 1939 · Supreme Court of North Carolina

216 N.C. 242

EDWIN LEE POWELL v. V. J. and C. H. SMITH, Trading and Doing Business as SMITH'S TRANSFER COMPANY; VANCE CHURCH, S. E. CAMPBELL, and CHRISTINE WALLACE.

(Filed 27 September, 1939.)

Pleadings § 16 — Demurrer for misjoinder of parties and causes held properly denied when all causes of action arose out of same automobile accident.

Defendant in a negligent injury action had other parties joined as defendants upon allegation that such other parties were joint tort-feasors in any negligence which might be found against it, and ashed contribution. Such other defendants answered and set up a cross-action against the original defendant, alleging damage to their property in the same accident resulting from the original defendant’s negligence. Held: The original defendant’s demurrer to the cross actions on the ground of mis-joinder of parties and causes was properly overruled, since the causes of action grew out of the same transaction. O. S., 455, 456.

Appeal by defendants Y. J.- and 0. H. Smith, trading and doing business as Smith’s Transfer Company, and Vance Church, from Pless, J., at June Term, 1939, of BuNCOmbe.

Affirmed.

The plaintiff Edwin Lee Powell brought this action against Y. J. and C. H. Smith, trading and doing business as Smith’s Transfer Company, and Yance Church, to recover for a personal injury received through the alleged negligence of the defendants in the operation of a truck, and filed his complaint setting up the cause of action against them. The defendant Smith’s Transfer Company thereupon applied to have S. E. Campbell and Miss Christine Wallace joined as parties defendant, filing contemporaneously with the motion a complaint alleging that said Campbell and Miss Wallace were joint tort-feasors with this defendant in any negligence which might be found against it, and asking for contribution. Both S. E. Campbell and Christine Wallace answered, setting up cross actions against the Transfer Company and demanding damages because of its negligence in injuring their properties. The defendant Transfer Company thereupon moved to strike out from the answers of Christine Wallace and S. E. Campbell, respectively, the cross actions or causes of action demanding affirmative relief, and demurred to each of them for misjoinder of causes of action and of parties. The motions to strike were denied and the demurrers overruled, and defendants appealed.

Alvin Kartus for Christine Wallace, appellee.

Heazel, Shuford & Hartshorn for S. E. Campbell, appellee.

Williams & Cocke for defendants, appellants.

Per Curiam.

The defendant Transfer Company had S. E. Campbell and Christine Wallace brought in as parties for its own convenience and relief and asserted a cause of action against them for contribution as joint tort-feasors in case a recovery should be had against the Transfer Company because of its negligence. Each of the defendants countered with an affirmative demand for compensation against the Transfer Company for negligent injury to property. The causes of action grew out of the same transaction and are properly litigated in the same action. There is no misjoinder of parties or causes of action. C. S., 455-456; Wilson v. Motor Lines, 207 N. C., 263, 176 S. E., 750; Hudson v. Transportation Co., 214 N. C., 489.

The judgment is

Affirmed.