Reid v. Holden
88 S.E.2d 125
N.C.
1955
Check Treatment
Bobbitt, J.

As stated by Seawell, J., in Sanderson v. Ins. Co., 218 N.C. 270, 10 S.E. 2d 802: “Res judicata is аn affirmative plea in bar which must be taken by answer and supported by competent evidence. When properly raised, the issue will be determined according to the practice of the Court, but the defense is not available on a motion to dismiss. Williams v. Hutton & Bourbonnais Co., 164 N.C. 216, 80 S.E. 257; Redmond v. Coffin, 17 N.C. 437; Bear v. Comrs. of Brunswick County, 124 N.C. 204, 32 S.E. 558.”

Nor can this plea be considered on demurrer unless the facts supporting it appear on the face of the complaint. Hampton v. Pulp Co., *412 223 N.C. 535, 27 S.E. 2d 538; Miller v. Bank, 234 N.C. 309, 67 S.E. 2d 362. In the present case, no facts supporting defendants’ pleas of res judicata appear on the face of the сomplaint. Nor do the replies contain allegations or admissions sufficient to support such pleas.

Unless otherwise provided by stipulation, only the documents constituting the record proper are before the court at pre-trial confеrence. When the summons, pleadings and judgment in the former action brought by plaintiff, as relator, were offered in evidence, the time for offering evidence had not arrived. However, since plaintiff does not challenge the authenticity of these documents, plaintiff’s сounsel, upon the oral argument, asked that the court treat as abandoned his excep-tive assignment of error based on the admission of this evidence and consider its significance in relation to defendants’ pleas of res judicata. We accede to this request. Even so, we are mindful that these documents constituted the only evidence before the court below and before this Court.

In the former action, as appears from the caption, plaintiff, as relator, sued the named officials and the surеty on their bonds. The action was to recover actual and punitive damages. Briefly stated, the complaint alleged that Tucker, the constable, and Isley, the deputy sheriff, on 12 April, 1952, acting under color of their respective offices, in connection with serving papers in a claim and delivery proceeding, “viciously, maliciously and wantonly assaulted, severely wounded and permanently and seriously injured the relator herein by shooting him between the eyes with a tear gas bomb,” etc. Upon defendants’ dеnial, the issue was submitted and answered in favor of defendants; and final judgment adverse to plaintiff-relator was entered.

Generally, the plea of res judicata may be sustained only when there is an identity ‍‌​‌‌‌​‌​‌​​‌​‌‌‌‌​​​​‌‌​​​​​​‌‌​​​​‌​‌​​​​‌‌​‌​​‍of parties, of subj ect matter, and of issues. Leary v. Land Bank, 215 N.C. 501, 2 S.E. 2d 570; Coach Co. v. Burrell, 241 N.C. 432, 85 S.E. 2d 688.

The plaintiff herein was the plaintiff in the former action. True, as required by G.S. 109-34 in relation to actions on official bonds, the action was brought “in the name of the State.” But the plaintiff-relator had the absolute right to bring such action. Boothe v. Upchurch, 110 N.C. 62, 14 S.E. 642. “Entitled to receive to his own use the money recovered,” he was the real party in interest. G.S. 109-35. The conclusive effect of a prior judgment is on the real party in interest, not on a nominal party. 50 C.J.S. 300, Judgments sec. 771; Patterson v. Franklin, 168 N.C. 75, 84 S.E. 18.

Defendant Holden was not a party to the former action. Indeed, the complaint therein contains no reference to him. Mоreover, the cause of action alleged by plaintiff-relator was for the sole purpose of *413 recovering damages on account of personal injuries. No cause of action was alleged either to recover damages for wrongful seizure and conversion of the tires or for damages to plaintiff’s automobile.

While not separately stated, it appears that plaintiff has attempted to allege at least three separate causes of action, to wit, (1) for personal injuries caused by unlawful assault upon him, (2) for damages tо his automobile, and (3) for wrongful seizure and conversion of the tires. No demurrer was interposed on the ground of misjoinder of causes of action. Heath v. Kirkman, 240 N.C. 303, 82 S.E. 2d 104. The intermixture of these separate causes of action renders it somewhat more difficult to deal with thе questions now presented.

It is important to bear in mind that no evidence in relation to the claim and delivery proceeding, referred to in the Second Further Defense, was before the court. It does appear that defendants Tucker and Isley, in thеir answers to the complaint in the former action, alleged that they were engaged in serving claim and delivery papers on the plaintiff; but, unaided by either the evidence or the charge in the former action, we are unable to determine to whаt extent, if any, the validity of the claim and delivery proceeding was determined by the jury and adjudicated by the court. It is well settled that a verdict must be interpreted with reference to the pleadings, the evidence and the judge’s charge. Jernigan v. Jernigan, 226 N.C. 204, 37 S.E. 2d 493. And in determining whether a judgment constitutes res judicata, the judgment must be interpreted with reference to the pleadings, the evidence, the judge’s charge and the issues submitted to and answered by the jury. Clinard v. Kernersville, 217 N.C. 686, 9 S.E. 2d 381.

As stated, the former action included no alleged cause of action on account of damages to plaintiff’s automobile. Nor does it appear that this subject was referred to ‍‌​‌‌‌​‌​‌​​‌​‌‌‌‌​​​​‌‌​​​​​​‌‌​​​​‌​‌​​​​‌‌​‌​​‍in any pleading in the former action. True, where there is an indivisible cause of action the plaintiff cannot bring suits piecemeal for distinct elements of damage. Gaither Corp. v. Skinner, 241 N.C. 532, 85 S.E. 2d 909; Bruton v. Light Co., 217 N.C. 1, 6 S.E. 2d 822; Underwood v. Dooley, 197 N.C. 100, 147 S.E. 686. As stated by Connor, J., in Underwood v. Dooley, supra: “It is, therefore, well settled in this jurisdiction that one who has sustained damages, resulting from injuries both to his property, and to his person, caused by the single wrong or tort of another, can maintain only one action for the recovery of his damages, and that he cannot split his cause of action, arising from a single wrong or tort, and maintain separate actions against the tort-feasor, as defendant, and recover therein for separate items of damage resulting from said wrong or tort.”

But a cause of action for an assault inflicting personal injuries, nоthing else appearing, is separate and distinct from a cause of action *414 for tortious injury and damage to personal property. While distinct causes of action belonging to defined classes may be united in the same complaint, G.S. 1-123, the plаintiff is permitted, not compelled, to do so. Shakespeare v. Land Co., 144 N.C. 516, 57 S.E. 213; Tyler v. Capeheart, 125 N.C. 64, 34 S.E. 108; Gregory v. Hobbs, 93 N.C. 1. “Although a plaintiff, having separate and distinct causes of action against the same defendant, may properly join them in one action, he is not required to do so in order to prevent a judgment on one from barring an action on the other.” 50 C.J.S. 114, Judgments sec. 668. In Shakespeare v. Land Co., supra, this appears: “The judgment is decisive of the points, raised by the pleadings, or which might properly be predicated on them. This certainly does not embrace any matters which might have been brought into the litigation, or any causes of action which plaintiff might have joined, but which, in fact, are neither joined nor embraced in the pleadings.” Jefferson v. Sales Corp., 220 N.C. 76, 16 S.E. 2d 462.

For the reasons stated, upon the present record, the court below was in error in holding that the former judgment, under principles of res judicata, constituted a bar to the alleged causes of action for (1) tortious injury and damage to the automobile, and (2) for wrongful seizure and conversion of the tires. Nor does the one-year statute of limitations apply to such actions. G.S. 1-52; G.S. 1-54.

In their brief, appellees state: “In the present action the plaintiff alleged that as a result of a conspiracy between the defendant Holden and the defendants Tucker and Isley, the defendants Tucker and Isley wilfully ‍‌​‌‌‌​‌​‌​​‌​‌‌‌‌​​​​‌‌​​​​​​‌‌​​​​‌​‌​​​​‌‌​‌​​‍shot the plaintiff in the face with a tear gas gun.” Thereupon, they contend that defendant Holden, an absentee conspirator, cannot be liable for acts of defendants Tucker and Isley for which they have been exonerated.

Appellant contends that the cause of action alleged herein is the unlawful conspiracy. On this ground, he contends that the present cause of action is wholly separate and distinct from that alleged in the former action, to wit, a cause of action grounded on specific overt acts оf defendants Isley and Tucker.

Attention is called to certain relevant general principles. “Accurately speaking, there is no such thing as a civil action for conspiracy. The action is for damages caused by acts committed pursuant to а formed conspiracy, rather than by the conspiracy itself; and unless something is actually done by one or more of the conspirators which results in damage, no civil action lies against anyone. The gist of the civil action for conspiracy is the act or acts committed in pursuance thereof — the damage — not the conspiracy or the combination. The combination may be of no consequence except as bearing *415 upon rules of evidence or the persons liable.” 11 Am. Jur. 577, Conspiracy sec. 45. To create civil liability for conspiracy there must have been an overt act committed by one or more of the conspirators pursuant to the scheme and in furtherance of the objective. 15 C.J.S. 1000, Conspiracy sec. 5. These principles have been recognized and applied by this Court. Muse v. Morrison, 234 N.C. 195, 66 S.E. 2d 783; Holt v. Holt, 232 N.C. 497, 61 S.E. 2d 448.

It would seem that, as to a conspirator who committed no overt act resulting in damage, the basis of his liability for the conduct of his co-conspirators bears close resemblance to the basis of liability of a principal under the doctrine of respondeat superior for the torts of his agent. It is well established that a judgment in favor of an agent or employee in an action brought by or against a third person in a tort action is a bar to any subsequent action brought by such third person against the principal or еmployer in which the same alleged tortious acts of the agent or employee are alleged to impose liability upon the principal or employer under the doctrine of respondeat superior. Coach Co. v. Burrell, supra; Stone v. Coach Co., 238 N.C. 662, 78 S.E. 2d 605; Leary v. Bank, supra. In Whitehurst v. Elks, 212 N.C. 97, 192 S.E. 850, this general statement appears: “Where the relation between two parties is analogous to that of principal and agent, or master and servant, or employer and employee, the rule is that a judgment in favor of eithеr, in an action brought by a third party, rendered upon a ground equally applicable to both, should be accepted as conclusive against plaintiff’s right of action against the other. 15 R.C.L. 1027.”

Assuming, without deciding, that the facts as to alleged conspiracy have been sufficiently alleged, Thomas & Howard Co. v. Ins. Co., 241 N.C. 109, 84 S.E. 2d 337, the question debated is not now before us; for the statement quoted from appellees’ brief is at variance with the complaint. The complaint does not allege that defendants Tucker and Isley committed the alleged wrongful acts, and that defendant ‍‌​‌‌‌​‌​‌​​‌​‌‌‌‌​​​​‌‌​​​​​​‌‌​​​​‌​‌​​​​‌‌​‌​​‍Holden is liable solely as an absentee conspirator. Rather, the complaint alleges affirmatively, repeatedly and consistently that all alleged wrongful acts, pursuant to the alleged unlawful conspiracy to repossess the tires, were committed by the defendants.

It would seem that the alleged assault by defendants Isley and Tucker, whereby personal injuries were inflicted upon the plaintiff, is the same assault alleged and involved in the former action. If so, their plea of res judicata in respect of said alleged assault would seem to be well founded. Yet, in the absence of admissions or evidence, we cannot declare that the incidents referred to are the same.

There remains for consideration the defendants’ plеa of the one-year statute of limitations. This is applicable to an action “against *416 a public officer, for a trespass under color of his office.” G.S. 1-54(1). While the evidence may so reveal, the plaintiff does not ground his action on trespаss under color of office. Even so, the same statute is applicable to an action “for assault.” G.S. 1-54(3).

A statute of limitations must be pleaded. It cannot be considered on demurrer. Lewis v. Shaver, 236 N.C. 510, 73 S.E. 2d 320. The plea must be interposed affirmatively, by answer. G.S. 1-15. It was so pleaded here.

Ordinarily, such plea would not be considered on a motion to dismiss. Oldham v. Rieger, 145 N.C. 254, 58 S.E. 1091. But it appears affirmatively that this action was commenced 24 August, 1953; and that the alleged assault whereby defendants inflicted personal injuries on plaintiff occurred 12 April, 1952. Thus, the aсtion for alleged assault was barred, nothing else appearing. Although plaintiff filed a reply to each answer, he alleged no facts that would repel the plea of the statute. True, he alleged generally that his action was not barred by the statute. Quaere: When the complaint discloses that plaintiff’s action is barred ‍‌​‌‌‌​‌​‌​​‌​‌‌‌‌​​​​‌‌​​​​​​‌‌​​​​‌​‌​​​​‌‌​‌​​‍by a statute of limitations pleaded by defendant, and the plaintiff replies thereto without alleging facts sufficient to repel defendant’s plea, should such action be dismissed as a matter of law? Since the cause will be remanded, plaintiff may move, if so advised, for leave to plead such facts, if any there be, as would repel the bar of the statute.

For the reasons stated, the judgment of the court below dismissing the action is reversed; and the cause is remanded for further proceedings not inconsistent with the law as stated herein.

Reversed and remanded.