explaining that “the presence of identical factual issues in both proceedings may produce inconsistent verdicts and thus an immediate appeal is [] allowed”
How later courts described this case
- explaining that “the presence of identical factual issues in both proceedings may produce inconsistent verdicts and thus an immediate appeal is [] allowed”
- noting “two occasionally incompatible lines of authority governing the appeal-ability of partial summary judgments,” referring to the Supreme Court’s apparent rejection of part of the Oestreicher opinion in Green v. Duke Power Co., 305 N.C. 603, 290 S.E.2d 593, (1982)
- appeal allowed of grant of defendant's summary judgment motion dismissing plaintiff's claim, but leaving defendant's counterclaim intact, because of possible inconsistent verdicts
- the possibility Of undergoing a second trial affects a substantial right only when the same issues are present in both trials
Written by the judges who cited it.
The opinion
Judge Phillips
concurring in the result.
Though I agree that the order is both appealable and erroneous, in my judgment most of what is said in the opinion is unnecessary and some of it is incorrect. In my view the issues discussed are free of difficulty, each can be adequately and correctly treated in a paragraph or two, and neither party nor our jurisprudence would have suffered if nothing had been said about appealability since that issue was not raised by either of the briefs and the order was clearly appealable, in any event. Be that as it may, my opinion is that: (1) The order, though interlocutory, was immediately appealable whether the trial judge so declared or not because plaintiff’s right to try its claim for defendants’ negligence in caring for its airplane before the same jury that tries defendants’ counterclaim for expenses incurred in caring for the plane is a substantial one, G.S. 1-277, for it would be a travesty if the claims were tried before different juries and one found that the parties agreed to one thing and the other found that they agreed to something else; and (2) the order was erroneous and no *19 further findings are necessary because the materials before the court clearly establish that plaintiff assigned to its insurance company only that part of its indivisible claim that the insurance company paid for, and thus plaintiff is still a necessary party to the action and the insurance company can be joined at the motion of either party.