Johnson v. Cleveland County Board of Education

Barnhill, C. J. We observe with disfavor that tbe and/or method of naming tbe defendants in tbe captions to tbe summons and pleadings filed has been adopted in this cause. The question immediately arises: Does plaintiff seek recovery against tbe County Board of Education or tbe State Board or against both defendants? When a judge of tbe Superior Court acquires jurisdiction of tbe parties and tbe subject matter in pending litigation, any judgment or decree entered by him becomes res judi-cata as to tbe parties and all their privies. Hence, more exactitude in naming those who are defendants is required. Gibson v. Insurance Co., 282 N.C. 712, 62 S.E. 2d 320, and cases cited; S. v. McLamb, 236 N.C. 287, 72 S.E. 2d 656; S. v. Daughtry, 236 N.C. 316, 72 S.E. 2d 658. When Patton, S. J., on defendants’ first appeal to the Superior Court, sustained tbe exceptions of defendants, plaintiff’s remedy was by appeal to this Court. In tbe meantime, pending tbe disposition of tbe appeal, tbe Commission was bound by tbe order entered in the Superior Court. Although it is patent that a majority of tbe Commission are “of tbe same opinion still,” it was their duty to bowr to superior authority and eliminate those findings Patton, S. J., concluded are not supported by any competent evidence. Instead, they rephrased tbe language of tbe original findings, readopted them as so rephrased, made additional findings, concluded “that the proximate cause of tbe death of this child was tbe conduct of tbe school bus driver originating with excessive speed and ending with bis *60 unexplained failure to reduce bis speed and protect tbe door handle after discovering the perilous position occupied by the boy,” and again awarded plaintiff $8,000. Thus the facts found are in substance the same and the questions presented are identical. The record is devoid of any competent evidence tending to support the crucial findings made by the Commission on the question of negligence. The bus was one of the newer type, and its door mechanism operated more easily than on the older type bus. Yet it took “sustained pressure” on the door lever to cause it to open. So all the witnesses testified. There is no evidence in the record tending to show that this mechanism was loose or that a jolt or jar would cause the door to open or that the door or door lever was in the slightest state of disrepair. Nor is there any evidence of speed or other want of due care on the part of the bus operator. The bus had just been put in motion after stopping to pick up a passenger. It could not have attained any considerable speed at the time the mishap occurred, and no witness undertook to testify that it had. When the deceased left his seat and walked to the front of the bus, both the bus driver and his companion told him to return to his seat. Even if we concede that the bus driver, on proper occasion, was vested with authority to use physical force to compel the deceased to return to his seat, that occasion had not arisen when the unfortunate accident occurred. It follows that the court below erred in overruling the defendants’ exceptions to the findings of fact made by the Commission. ' It will now remand the cause to the Commission with direction that it enter judgment denying the claim of plaintiff and dismissing the action. To that end the judgment entered in the court below is Reversed.