Smith v. Gibbons, 230 N.C. 600 (1949)

Sept. 21, 1949 · Supreme Court of North Carolina

230 N.C. 600

COY G. SMITH v. J. J. GIBBONS.

(Filed 21 September, 1949.)

1. Pleadings § 2—

The word “transaction” as used in G.S. 1-123 (1) means something which has taken place whereby a cause of action has arisen, either ex contractu or in tort; and the term “subject of action” as used in this statute means the thing in respect to which plaintiff’s right of action 'is asserted.

2. Same — Canse ex contractu and causes in tort held not to have arisen from same transaction nor transactions connected with same subject of action.

A cause of action to recover the balance of compensation due plaintiff under an express contract of employment is improperly united with a cause of action to recover damages for assault committed by defendant upon plaintiff when he visited the office of the defendant to discuss the matter, and a cause of action to recover damages for false imprisonment of plaintiff by defendant growing out of the assault, since the action ex contractu is asserted in respect to tlie- contract of employment and arose ont of the wrongful breach thereof by defendant, while the causes of action in tort are addressed to the violation of right of liberty and security of person, constituting a different subject of action and arising out of a different transaction, i.e., the infliction of personal injuries ; but the causes of action in tort may be properly joined since they arose at the same time out of the same transaction, and further, relate to ifljuries to the person. G.S. 1-123 (3).

3. Pleadings § 19b—

Where there is a misjoinder of causes of action alone, the action need not be dismissed upon demurrer, but the court is authorized to divide the action for separate trials. G.S. 1-127 (5), G.S. 1-132.

Appeal by defendant from Morris, J., at tbe February Term, 1949, of WlLSON.

Tbe complaint states these three causes of action: (1) A cause of action to recover tbe remainder of tbe stipulated compensation due plaintiff by defendant for personal services rendered before 18 November, 1947, under an express contract of employment made by tbe parties in “tbe early part of tbe year 1947”; (2) a cause of action to recover damages for an assault committed upon plaintiff by defendant on 18 November, 1947, when plaintiff visited tbe office of the defendant in Wilson, North Carolina, “for tbe purpose of discussing tbe balance of money to be paid to tbe plaintiff” upon tbe express contract mentioned in tbe first cause of action; and (3) a cause of action to recover damages for false imprisonment of plaintiff by defendant accompanying tbe assault forming tbe basis of tbe second cause of action.

Tbe defendant demurred to tbe complaint in tbe court below for mis-joinder of tbe causes of action, and tbe court overruled tbe demurrer. Tbe defendant appealed, assigning this ruling as error.

Sharpe & Pittman and Robert A. Parris for plaintiff, appellee.

Connor, Gardner & Connor for defendant, appellant.

Esvik, J.

Tbe complaint states three causes of action, and tbe question arises, Are they improperly united? Gr.S. 1-127 (5).

Tbe first cause of action arises on a contract, and tbe second and third causes of action arise in tort. Hence, they could not have been united in tbe same complaint at common law. McIntosh: North Carolina'Practice and Procedure in Civil Cases, section 420. Besides, it is apparent that tbe joinder of tbe first cause of action with the second and third causes of action is not even sanctioned by tbe Code of Civil Procedure unless they fall within tbe purview of tbe section providing that “tbe plaintiff may unite in tbe same complaint several causes of action, of legal or equitable nature, or both, where they all arise out of the same transaction, or transactions connected with the same subject of action.” G.S. 1-123 (1); Cedar Works v. Lumber Co., 161 N.C. 603, 77 S.E. 770; Hawk v. Lumber Co., 145 N.C. 48, 58 S.E. 603; Reynolds v. R. R., 136 N.C. 345, 48 S.E. 765; R. R. v. Hardware Co., 135 N.C. 73, 47 S.E. 234; Daniels v. Baxter, 120 N.C. 14, 26 S.E. 635; Benton v. Collins, 118 N.C. 196, 24 S.E. 122; Hodges v. R. R., 105 N.C. 170, 10 S.E. 917.

The word “transaction,” as employed in this section, means something which has taken place whereby a cause of action has arisen, and embraces not only contractual relations but also occurrences in the nature of tort. Stark County v. Mischel, 33 N.D. 432, 156 N.W. 931. See, also, in this connection: Cheatham v. Bobbitt, 118 N.C. 343, 24 S.E. 13, and 1 Am. Jur., Actions, section 85. The term “subject of action,” as used in the same statute, denotes “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.” Hancammon v. Carr, 229 N.C. 52, 47 S.E. 2d 614.

When the complaint is tested by these principles, it is plain that the action ex contractu and the two actions ex delicto set forth therein did not arise out of the same transaction, or transactions connected with the same subject of action. The plaintiff’s first cause of action is asserted in respect to his contract of employment, and arose out of the wrongful breach of such contract by defendant. His second and third causes of action are addressed to a different subject of action, i.e., his violated right of liberty and security pf person, and arose out of a different transaction, i.e., personal injuries inflicted upon him by defendant. Thus, it appears that the cause of action based on contract and the two causes of action founded on tort are improperly united. Pressley v. Tea Co., 226 N.C. 518, 39 S.E. 2d 382.

This conclusion does not necessarily compel a dismissal of the action. The judge of the Superior Court is authorized by statute to divide an action on the docket for separate trials in cases where there is a mere misjoinder of causes of action. G.S. 1-132; Pressley v. Tea Co., supra.

If this course should be taken by the judge of the Superior Court in this instance, the causes of action for assault and false imprisonment might well be tried together. They arose at the same time out of the same transaction. Moreover, their joinder is permitted by the statutory provision authorizing a plaintiff to unite in the same complaint several causes of action arising out of injuries to the person. G.S. 1-123 (3).

For the reasons given, the judgment overruling the demurrer is

Reversed.