The ruling of the court below is in accord with the recent decision of this Court in the case of Dwiggins v. Bus Co., 230 N.C. 234, 52 S.E. 2d 892, and the authorities cited therein.
The judgment entered below is
Affirmed.
Brothers v. Bell Bakeries, Inc., 231 N.C. 428 (1950)
Feb. 3, 1950
·
Supreme Court of North Carolina
231 N.C. 428
L. C. BROTHERS, JR., v. BELL BAKERIES, INC., and E. L. RIGSBEE.
(Filed 3 February, 1950.)
Abatement and Revival § 9—
Tbe pendency of an action involving tbe respective liabilities of three parties to a collision inter se, precludes a subsequent action by one of defendants therein against tbe other two parties based on the same collision, and the second action is properly abated upon answer alleging the facts.
Appeal by plaintiff from Burney, J., at October Term, 1949, of GRANVILLE.
Civil action to recover for personal injuries and property damage, which tbe plaintiff alleges be sustained as a result of tbe negligence of tbe defendants.
1. Tbe negligence complained of, tbe plaintiff alleges, caused a collision on 6 August, 1948, on U. S. Highway No. 15, in Granville County, between a motor vehicle operated by tbe plaintiff, L. C. Brothers, Jr., and a motor vehicle owned by tbe defendant, Bell Bakeries, Inc., in tbe possession and under tbe control of one of its employees.
2. According to plaintiff’s complaint, tbe motor vehicle of tbe defendant, Bell Bakeries, Inc., and a motor vehicle owned and operated at tbe *429time by E. L. Eigsbee, were stopped or parted near eacb other, beaded in opposite directions, on the aforesaid highway, so as to block the paved portion thereof.
3. The plaintiff, according to the allegations in his complaint, ran his car into the rear of the motor vehicle of Bell Bakeries, Inc., sustaining substantial injuries and damage.
4. On 29 September, 1948, Bell Bakeries, Inc., instituted an action in the Superior Court of Wake County, entitled “Bell Bakeries, Inc. v. L. C. Brothers,” seeking to recover for its alleged property damage resulting from the above collision. In this action the defendant, L. C. Brothers (the plaintiff herein), filed an answer in which he denied liability and impleaded E. L. Eigsbee, alleging that if he, Brothers, was negligent, Eigsbee was also negligent, and that Eigsbee should be made a codefendant with Brothers, so that Brothers might have the benefit of contribution from Eigsbee in case of any recovery by the plaintiff, Bell Bakeries, Inc. Accordingly, E. L. Eigsbee was made a party defendant, and served with summons on 14 February, 1949.
5. The plaintiff herein instituted this action in Granville County, on 4 April, 1949.
6. The Bell Bakeries, Inc., filed an answer and pleaded the prior pending action in Wake County as á bar to the right of the plaintiff to maintain this action. In support of its plea and motion to dismiss, when the matter came on for hearing, it offered certified copies of the summonses, pleadings and the various motions and orders on file in the action pending between the parties in Wake County.
The motion was allowed and the action abated and dismissed as to Bell Bakeries, Inc.
Plaintiff appeals and assigns error.
Royster & Royster for plaintiff.
Bickett & Banks for defendants.