175 S.E. 179 | N.C. | 1934
CONNOR, J., dissents. Civil action to recover damages for alleged negligent injury to plaintiff's truck.
Summons and copy of complaint were served on the defendants 4 April, 1931.
It is alleged in the complaint that on the morning of 31 March, 1931, on Highway No. 1, near South Hill, Va., a truck owned by the *688 defendant, C. G. Black, operated by the defendant, K. S. Trucking Company, and driven by C. W. Silver, who was also accompanied by Hunter Black, brother of the owner of the truck, negligently ran into and completely demolished a truck owned by the plaintiff and operated at the time by its employee, F. M. Akins; and that both defendants are liable to plaintiff for the damages sustained.
On 25 May, 1931, judgment by default and inquiry was entered against the defendants for want of an answer; motion thereafter to set it aside for excusable neglect overruled; and at the January Term, 1934, said inquiry was executed before a jury, the damages being assessed at $400.
Upon the execution of the inquiry, the defendants sought to show how the collision occurred; that it was really due to the conduct of F. M. Akins, driver of plaintiff's truck; and that the defendant, K. S. Trucking Company, was in no way connected with C. G. Black's truck as lessee or otherwise. All this proffered testimony was excluded as irrelevant and immaterial on the issue of damages. The appeal presents the question of the competency of this evidence.
From judgment on the verdict, the defendants appeal, assigning errors. What is the effect of a judgment by default and inquiry? The answer is threefold:
1. It establishes a right of action of the kind properly pleaded in the complaint. Bowie v. Tucker, ante, 56; Strickland v. Shearon,
2. It determines the right of the plaintiff to recover at least nominal damages and costs. Foster v. Hyman,
3. It precludes the defendant from offering any evidence, on the execution of the inquiry, to show that the plaintiff has no right of *689
action. Mitchell v. Express Co.,
A judgment by default final as authorized by C.S., 595, is different in effect and result from a judgment by default and inquiry as authorized by C.S., 596. Gillam v. Cherry,
Thus, in Stockton v. Mining Co.,
Likewise, in Blow v. Joyner, supra, the following discriminating statement appears: "The authorities are very generally to the effect that where a complaint has been properly filed showing a right of action for unliquidated damages, a judgment by default and inquiry establishes plaintiff's right of action and that he is entitled at least to nominal damages. Osborn v. Leach,
"There are two kinds of judgments by default — one final, the other interlocutory. In actions sounding in damages the interlocutory judgment, which is rendered for want of an answer, is an admission or confession of the cause of action; and there follows a writ of inquiry by means of which the damages are to be assessed." — Montgomery, J., inJunge v. MacKnight,
Applying the principles gleaned from the authorities to the facts of the instant case, it would seem that the evidence tending to show how the injury occurred is competent, not for the purpose of exculpating the defendants from liability, but to establish the amount of damages properly assessable upon the inquiry. Strickland v. Shearon, supra; Graves v.Cameron,
A simple illustration may serve to make clear its competency: A. and B., each driving a truck or automobile, approach from opposite directions upon the highway. B. is slightly over the center of the road. A. decides to teach him a lesson by taking his front wheel off. This he does with consequent injury to himself. A. sues B. and obtains a judgment by default and inquiry for want of an answer. Upon the execution of the inquiry, B. offers to show how the collision occurred, not to escape his liability of a penny and the costs established by the judgment, but to show that A.'s damage, over and above the amount fixed by the default judgment, was the result of a self-inflicted injury (not contributory negligence) and the proper measure of damages.S. v. Eldridge,
On the other hand, the evidence offered to show the relation between the defendants, which goes only to the question of liability, was properly excluded.
New trial.
CONNOR, J., dissents. *691