{ "id": 11271441, "name": "MOLLIE C. PARKER v. NORTH CAROLINA RAILROAD COMPANY", "name_abbreviation": "Parker v. North Carolina Railroad", "decision_date": "1909-04-07", "docket_number": "", "first_page": "433", "last_page": "435", "citations": [ { "type": "official", "cite": "150 N.C. 433" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "123 N. C., 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657415 ], "opinion_index": 0, "case_paths": [ "/nc/123/0089-01" ] }, { "cite": "118 N. C., 842", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654149 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/118/0842-01" ] }, { "cite": "73 N. C., 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8690285 ], "opinion_index": 0, "case_paths": [ "/nc/73/0273-01" ] }, { "cite": "131 N. C., 455", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661319 ], "opinion_index": 0, "case_paths": [ "/nc/131/0455-01" ] }, { "cite": "116 N. C., 940", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655881 ], "opinion_index": 0, "case_paths": [ "/nc/116/0940-01" ] } ], "analysis": { "cardinality": 322, "char_count": 5905, "ocr_confidence": 0.459, "pagerank": { "raw": 1.2815507290530084e-07, "percentile": 0.6176543497323589 }, "sha256": "9a383104c753a389798f982defb5444218dd4ad5addce07743e2d7542fe564e3", "simhash": "1:0f9267dd940c1d67", "word_count": 1006 }, "last_updated": "2023-07-14T18:55:20.077008+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MOLLIE C. PARKER v. NORTH CAROLINA RAILROAD COMPANY." ], "opinions": [ { "text": "Walker, J.\nTbis action was brought to recover damages for the death of the plaintiffs intestate, which is alleged to have been caused by the negligence of the defendant\u2019s lessee, the Southern Railway Company. ' It is alleged in the complaint that, prior to 6 August, 1907, the defendant leased its road, fixtures and franchise to the Southern Railway Company for a term of years, and that on said day \u201cthe defendant\u2019s lessee, by and with the knowledge, consent and approval of the defendant, was operating freight and passenger trains along said line of railway,\u201d the intestate being one of its locomotive engineers, and that while so employed and engaged in the performance of his duty he was killed by the collision of the engine, which was then in his charge as engineer,. and a train of the defendant\u2019s lessee, and that the collision was caused by the negligence of the said lessee. The defendant demurred on the ground that it did not sufficiently appear in the complaint that the lease was in force at the time the plaintiff\u2019s intestate was killed, nor that the intestate was acting under instructions given by the said lessee. \u00a5e have stated only the substance of the complaint and demurrer. The court overruled the demurrer and permitted the defendant to answer, and to this ruling the defendant excepted and appealed. We do not entertain any doubt as to the correctness of the ruling of the court. It appears, at least substantially, in the complaint that at the time the intestate was killed the Southern Railway Company was operating the railway of the defendant as its lessee, and that the intestate was in the employ of the lessee and in the discharge of his duty as one of its engineers. That the defendant, as lessor, is liable for the negligent killing of the intestate by its lessee has been settled by numerous decisions of this Court. Logan v. Railroad, 116 N. C., 940; Brown v. Railroad, 131 N. C., 455.\nTbe plaintiff contended in tbis Court that the demurrer was frivolous and judgment by default and inquiry should have been entered in the court below, and that we should direct such a judgment to be entered. But he did not move for judgment, as required by the Eevisal, sec. 656, which provides that \u201cIf a demurrer, answer or reply be frivolous, the. party prejudiced thereby may apply to the court or to the judge thereof for judg7 ment thereon, and judgment may be given accordingly.\u201d See, also, Eevisal, sec. 472. Nor did the plaintiff except to the judge\u2019s order and appeal. The judge had the discretion to permit the defendant to answer after he had overruled the demurrer, even if it was frivolous. Dunn v. Barnes, 73 N. C., 273; Clark\u2019s Code (3d Ed.), sec. 272, p. 295, and notes. The case of Morgan v. Harris, 141 N. C., at p. 360, is directly in point. The Chief Justice, speaking for the Court,\u2022 says: \u201cWhen a demurrer is overruled the defendant is entitled to answer over as a matter of right, \u2018if it appear that the demurrer was interposed in good faith.\u2019 Eevisal, sec. 506. But when the demurrer or answer is frivolous the plaintiff is entitled to judgment, unless the court, in the exercise of a sound discretion, permits the defendant to answer over. This was not done here, because the judge did not hold the demurrer frivolous,- and leave to answer was therefore not necessary. The refusal to hold a demurrer or answer frivolous and to render judgment thereon is not appeal-able (Walters v. Starnes, 118 N. C., 842; Abbott v. Hancock, 123 N. C., 89), where the reasons are given. The plaintiff\u2019s appeal must therefore be dismissed; but when the case goes back, with this judgment holding the demurrer to be frivolous, the plaintiff will be entitled to judgment by default, unless the court below is of the opinion that, in the exercise of a sound discretion, the facts justify permission to answer over. Eevisal, sec. 1279.\u201d\nThe case of Walters v. Starnes, 118 N. C., 842, cited by the plaintiff, does not sustain his position. The Court, in that case, merely held that the demurrer was frivolous, contrary to the ruling of the judge, but did not.direct judgment to be given in the Superior Court for the plaintiff. It was left with the judge to exercise his discretion. _ , .\nNo Error.-", "type": "majority", "author": "Walker, J." } ], "attorneys": [ "V. S. Bryant, Aycock & Winston and A. L. Brooks for plaintiff.", "Guthrie & Guthrie for defendant." ], "corrections": "", "head_matter": "MOLLIE C. PARKER v. NORTH CAROLINA RAILROAD COMPANY.\n(Filed 7 April, 1909.)\n1. Railroads \u2014 Lessor and Lessee \u2014 Pleadings\u2014Allegations of Lease\u2014 Demurrer. a\nWhen it is substantially alleged in the complaint, in a suit for damages against a railroad company, that x>laintiff\u2019s intestate was killed while in the course of his employment by defendant\u2019s lessee company operating the railroad of the defendant as its lessee, the complaint is not demurrable on the ground that it did not sufficiently appear that the lease was in force at the time of the injury.\n2. Railroads \u2014 Lessor and Lessee \u2014 Negligent Killing \u2014 Lessor\u2014Damages.\nDefendant lessor railroad company is liable for the negligent killing of plaintiff\u2019s intestate by its lessee railroad company. (Logan v. Railroad, 116 N. 0., 940, and Brown v. Railroad, 131 N. 0., 455, cited and approved.)\n3. Pleadings \u2014 Derpurrer, Frivolous \u2014 Appeal and Error \u2014 Procedure.\nThe. Supreme Court, holding a demurrer to a complaint frivolous, will not direct judgment by default and inquiry to be entered in the trial court, when no motion for such judgment had been made in the lower court and no exception to the judge\u2019s order allowing an answer had been taken and appealed from. (Revisal, secs. 656, 472.)\n4. Pleadings \u2014 Demurrer, Frivolous \u2014 Discretionary Powers \u2014 Answer.\nIt is in the discretion of the trial judge to permit defendant to answer after overruling a demurrer to the complaint, though the demurrer were frivolous.\nCause beard on demurrer to complaint, before Jones, J., at August Term, 1908, of Durham.\nDefendant appealed.\nV. S. Bryant, Aycock & Winston and A. L. Brooks for plaintiff.\nGuthrie & Guthrie for defendant." }, "file_name": "0433-01", "first_page_order": 477, "last_page_order": 479 }