Dwiggins v. Parkway Bus Co.

WiNBORNE, J. Did the court below err in denying motion of defendant Parkway Bus Company for dismissal of present action on the ground that there is another action pending between the same parties for the *237 same cause? G.S. 1-127. Tbis is tbe determinative question on tbis appeal, and tbe answer is “Yes.” “Where an action is instituted, and it appears to tbe court by plea, answer or demurrer, tbat there is another action pending between tbe same parties and substantially on tbe same subject matter, and tbat all tbe material questions and rights can be determined therein, such action will be dismissed,” Faircloth, C. J., in Alexander v. Norwood, 118 N.C. 381, 24 S.E. 119. See also Emry v. Chappell, 148 N.C. 327, 62 S.E. 411; Allen v. Salley, 179 N.C. 147, 101 S.E. 545; Construction Co. v. Ice Co., 190 N.C. 580, 130 S.E. 165; Morrison v. Lewis, 197 N.C. 79, 147 S.E. 729; Underwood v. Dooley, 197 N.C. 100, 147 S.E. 686, 64 A.L.R. 656; Johnson v. Smith, 215 N.C. 322, 1 S.E. 2d 834; Thompson v. R. R., 216 N.C. 554, 6 S.E. 2d 38; Moore v. Moore, 224 N.C. 552, 31 S.E. 2d 690. If tbe fact of tbe pendency of such prior action appears on tbe face of tbe complaint, it is ground upon which defendant may demur to tbe complaint. G.S. 1-127. But if tbe fact does not so appear, objection may be raised by answer, G.S. 1-133, and treated as a plea in abatement. Cook v. Cook, 159 N.C. 47, 74 S.E. 639; Allen v. Salley, supra; Thompson v. R. R., supra . Indeed, in Alexander v. Norwood, supra, tbe Court went so far as to say: “Tbe plaintiff has no election to litigate in tbe one or bring another action (Rogers v. Holt, 62 N.C. 108), and tbe Court will ex mero motu, dismiss tbe second action, as tbe parties even by consent, cannot give tbe court jurisdiction. Long v. Jarratt, 94 N.C. 443.” To like effect are these cases : Emry v. Chappell, supra; Construction Co. v. Ice Co., supra. Moreover, it is said tbat tbe entire spirit of our Code procedure is to avoid multiplicity of actions. Hence -where -an action for damages arising by tort from a collision between automobiles has be.en instituted by one of tbe parties, be may successfully plead tbe pendency of tbis action in bar to a later action brought against him by tbe opposing party in another county, and have it dismissed. Allen v. Salley, supra; Boney v. Parker, 227 N.C. 350, 42 S.E. 2d 222. Tbe remedy open to defendant in tbe prior action, plaintiff in second action, is by way of counterclaim set up in tbe prior action. In such case as in tbe present instance tbe causes of action in tbe respective eases arise out of, and are bottomed on tbe same collision, — • each alleging actionable negligence against tbe other. Tbe only question remaining is whether tbe parties to tbe action in Superior Court of Wilkes County are tbe same as tbe parties to tbe present action in Superior Court of Davie County. In tbis connection, at common law tbe liability of members of a partnership for a tort committed in tbe course of its business is joint and *238 several: Hall v. Younts, 87 N.C. 285; Mode v. Penland, 93 N.C. 292. Annotations 175 A.L.R. 1310. In Hall v. Younts, supra, in opinion by Ruffin,, J., it is said: “Rut partners, like individuals, are responsible for torts committed by their agents under express commands under the maxim qui facit per alium ■ facit per se, and a partner acting in the name of the firm, touching its business and with a knowledge of the other members must be regarded as the agent of all. In all such cases; says Collyer on Partnership, Sec. 457, the tort is looked upon as the joint and several tort of all the partners, and they may be proceeded against in a body, or one may be sued for the whole of the injury done.” The holding in Mode v. Penland, supra, is to like effect. There Merri-mon, J., for the Court, declared: “Although all the partners are liable in such cases and may be sued, it does not follow that all of them must be sued. The law treats all torts as several, as well as joint, and the party injured may, at his election, sue all of the partners, or any one or more of them, for the injury done him ... So that the plaintiff, if he suffered the injury complained of, could maintain his action against the defendant alone, or against him and his partners . . .” And the common law rule of joint and several liability of partners for a tort committed by one of the members of the partnership is incorporated in the Uniform Partnership Act, adopted by the General Assembly of this State. See P.L. 1941, Chapter 374, now Article 2 of Chapter 59 of the General Statutes. This Uniform Partnership Act provides: That a partnership is an association of two or more persons to carry on as co-owners a business for profit, G.S. 59-36; that every partner is an agent of the partnership for the purposes of its business, and the act of every partner for apparently carrying on in the usual way the business of the partnership of which he is a member ordinarily binds the partnership, G.S. 59-39; that where by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership or with the authority of his co-partners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act, G.S. 59-43; and that all partners are liable jointly and severally for everything chargeable to the partnership under G.S: 59-43. Therefore it is not necessary that all members of an alleged partnership should be served with summons. A partnership is represented by the partner who is served, and as to him a judgment in the action in which he is served would be binding on him individually, and as to the partnership property. But as to a partner not served with summons, the judgment would not be binding on him individually. Nevertheless even *239 after judgment sucb partner could be brought in and made a party. The court may, before or after judgment, direct the bringing in new parties to the end that substantial justice may be done. G.S. 1-73. Bullard v. Johnson, 65 N.C. 436; Walker v. Miller, 139 N.C. 448, 52 S.E. 125, 1 L.R.A. (N.S.) 157, 111 Am. St. Rep. 805; Daniel v. Bethell, 167 N.C. 218, 83 S.E. 307; Johnston Co. v. Stewart, 217 N.C. 334, 7 S.E. 2d 708. Applying these principles to the case in hand, it would seem that T. P. Dwiggins, one of the partners in Smith-Dwiggins Motor Company, haying been made a party individually to the action as originally instituted in Superior Court of Wilkes County before the action was commenced in Superior Court of Davie County, the case is staked out, so to speak, in Wilkes County. The rights and liabilities of the partnership arising out of the collision are dependent upon the acts of T.P. Dwiggins in connection therewith. Therefore, whatever rights of action T. P. Dwig-gins, individually and his partnership, whose automobile it is alleged in the present action he was operating at the time of the collision involved, may have against the Parkway Bus Company, arising out of the collision, can be determined in the action in Wilkes County, and, therefore, must be litigated in that action. Allen v. Salley, supra. Hence the judgment from which this appeal is taken will be set aside. The action abates. Action abated.