Michigan Sanitarium & Benevolent Ass'n v. Neal

139 S.E. 841, 194 N.C. 401, 1927 N.C. LEXIS 112

• Court: Supreme Court of North Carolina
• Decided: October 26, 1927
• Status: Published

Opinions

Civil action, instituted 13 June, 1927, to recover $401.35, balance alleged to be due for medical attention and services rendered defendant's son while a patient in plaintiff's sanitarium from 16 April, 1925, to 8 June of the same year.

On 4 July, 1927, the defendant filed answer and alleged that, in sending her 27-year-old son, W. W. Neal, to plaintiff's sanitarium, she was acting "not only in her own behalf, but also for and in behalf of her said son"; that by reason of plaintiff's careless and negligent treatment her son, instead of being benefited, sustained, as a direct and proximate cause of such malpractice, a violent derangement of mind and temporary loss of sanity, from which the defendant suffered great mental anguish and lost, for a time, the "comfort, sustenance and filial support of her said son," endamaging the defendant to the amount of $25,000, which she sets up as a counterclaim; and that as she was appointed guardian of her said son on 11 October, 1925, the defendant asked that she as guardian and her son be made parties defendant to the present action. This motion was allowed, over objection of plaintiff, and following the order making additional parties, W. W. Neal and his mother as guardian came in and filed answer, denying plaintiff's right to recover, and set up a counterclaim for the negligence and malpractice as above mentioned, and further alleged that the said W. W. Neal was wrongfully and brutally assaulted while in plaintiff's sanitarium, endamaging said defendants in the sum of $50,000.

Plaintiff demurred to the counterclaim set up by the defendants, which was sustained as to the counterclaim set up by Mrs. Neal individually and overruled as to the counterclaim set up by W. W. Neal and his guardian. Plaintiff and defendant, Mrs. W. P. Neal, appeal, assigning errors. PLAINTIFF'S APPEAL. after stating the case: The motion of the defendant to have herself as guardian and her son made parties defendant in this action was for the evident purpose of setting up a counterclaim, and not because the presence of such parties was necessary to "a complete determination of the controversy" between the plaintiff and the defendant (C. S., 460), or essential to a "settlement of the questions involved." C. S., 456. No adjustment of the rights, as between the defendants, is demanded, and while the additional parties may be proper, they are not necessary to a complete determination of the controversy. Spruill v. Bank,163 N.C. 43. Plaintiff has brought its action against Mrs. Neal alone, and upon the allegations of the complaint it must stand or fall. Therefore, the counterclaim set up in this action by W. W. Neal and his guardian should be stricken out. 24 R.C.L., 877. They were made parties only for the purpose of determining the controversy between the plaintiff and the original defendant. Joyner v. Fiber Co., 178 N.C. 634; Aiken v. Mfg. Co.,141 N.C. 339. The plaintiff has not elected to sue W. W. Neal, and no cause of action is set up as against him or his guardian.

It was held in Coursen v. Hamlin, 2 Duer (N. Y.), 513, that a counterclaim, which required the bringing in of other parties, could not be set up in the suit then pending. Note, 12 Am. Dec., p. 154. See, also, Note 10, A.L.R., 1252; Utley v. Foy, 70 N.C. 303; Walton v. McKesson,64 N.C. 154; Shell v. Aiken, 155 N.C. 212, andEngine Co. v. Paschal, 151 N.C. 27.

The case is not like Bowman v. Greensboro, 190 N.C. 611, and Guthriev. Durham, 168 N.C. 573, where questions of primary and secondary liability as between the defendants were presented. Nor is it one in which the rights of interveners are involved. Sitterson v. Speller, 190 N.C. 192;Temple v. LaBerge, 184 N.C. 252; Feed Co. v. Feed Co., 182 N.C. 690;Bank v. Furniture Co., 120 N.C. 477.

Error.

APPEAL OF DEFENDANT, MRS.W. P. NEAL.