Opinion
Filed 20 November 1963.
APPEAL by plaintiff from Johnston, J., May 1963 Mixed Session of UNION.
J. Max Thomas for plaintiff appellant.
Smith Griffin by C. Frank Griffin and Richardson Dawkins by O.L. Richardson for defendant appellees Catawba Oil Company of N.C. and Shell Oil Company.
Civil action to recover damages for the destruction by fire of a house allegedly caused by Coy Lee Stegall pouring a mixture of gasoline and kerosene or a mixture of kerosene and another highly explosive substance on a live fire in a wood stove, which resulted in an explosion, heard upon separate demurrers filed to the amended complaint by defendants Catawba Oil Company of North Carolina and Shell Oil Company.
From a judgment sustaining the separate demurrer of each oil company, plaintiff appeals.
The explosion and fire here is the same explosion and fire as alleged in the amended complaint in the case of Sheila Mangum Stegall, Administratrix of Coy Lee Stegall, against the same defendants here, the opinion in which is filed this day ante, 459, and the same explosion and fire as alleged in the amended complaint in the case of Pernay Stegall against the same defendants here, the opinion in which is filed this day ante 468. The explosion and fire caused the death of Coy Lee Stegall, the destruction in the house of the furniture of Pernay Stegall, and the destruction of a house owned by the plaintiff, in which his brother Pernay Stegall lived as his tenant.
The amended complaints in all three cases are identical, with the exception that one alleges the death of Coy Lee Stegall, and the other two property damage. The demurrers filed in all three cases are identical. The single judgment in all three cases are identical. The briefs filed by counsel in all three cases is identical. The briefs filed by counsel in all three cases are identical, with the exception that in the death case defendants' joint brief contends that on the face of the amended complaint itself contributory negligence on the part of plaintiff's intestate Coy Lee Stegall is so patent and unquestionable as to bar recovery by plaintiff. In addition, counsel in all three cases are the same.
The judgment below is affirmed upon authority of the case of Sheila Mangum Stegall, Administratrix of Coy Lee Stegall v. Catawba Oil Company of N.C., Shell Oil Company and Roy Broome, ante, 459. This is without prejudice to plaintiff's right to move in the court below for leave to amend his amended complaint under the provisions of G.S. 1-131.
Affirmed.