Smith v. Gibbons

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 *602 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.