143 S.E. 258 | N.C. | 1928
This is an action for actionable negligence instituted by plaintiff, a resident of South Carolina, against Brevard Auto Service Company, a corporation organized and existing under the laws of North Carolina, that operated a public motor bus line between Brevard and Hendersonville, N.C. It is alleged that the injury complained of, on which this action is based, took place on 24 August, 1926. That the defendant, J. Neely, was the agent of his codefendant, Brevard Auto Service Company, and the driver of the motor bus at the time of the injury complained of. That on 14 March, 1925, under authority and in compliance with chapter 50, Public Laws 1925, the Transylvania Casualty Insurance Company, a corporation organized and existing under the laws of Kentucky, gave bond in the sum of $5,000 for the protection of the public against injuries caused by the negligent operation of the motor buses owned and operated by Brevard Auto Service Company, which bond was in full force and effect at the time of the injury complained of, for which this action is instituted. The bond covered the motor bus of Brevard Auto Service Company, the defendant, which it is alleged was negligently being operated by J. Neely, its agent and codefendant, at the time plaintiff was injured.
The summons in the action was issued on 31 August, 1927, and duly served on defendants, and the complaint sworn to and filed in apt time.
The defendants, in apt time, made a motion to remove the action from Henderson County to Transylvania County. The plaintiff, Joseph H. Brown, is a resident of South Carolina; the defendant, Brevard Auto Service Company, is a corporation organized and existing under the laws of North Carolina; the defendant, J. Neely, is a resident of Transylvania County, and the Transylvania Casualty Insurance Company is a corporation organized and existing under the laws of Kentucky, and has been duly authorized and licensed to do business in North Carolina.
Plaintiff in his brief says: "In view of the decision in the case ofPalmer v. Lowe et al., as reported in
The several defendants also demurred for misjoinder of both parties and causes of action. The demurrers were overruled. In this we think the court below erred.
Public Laws 1925, chap. 50, sec. 3, 6(g), was construed in the case ofHarrison v. Transit Co.,
Thus the act of 1927, preserved obligations arising from duties imposed and the right to bring a suit for a cause of action accruing under said act of 1925. Hence the act of 1927, affected or operated upon the remedy only by providing a different method for enforcing the right of action. Moreover the plaintiff having brought his suit after the act of 1927 became effective the remedy as therein prescribed must control the action. The principle of law applicable is thus stated in Martin v. Vanlaningham,
Applying this principle to the facts disclosed by the record, we hold that the court below erred in overruling the demurrer and that the order of removal was properly granted.
Reversed.