Bargeon v. Seashore Transportation Co.

147 S.E. 299, 196 N.C. 776, 1929 N.C. LEXIS 105

• Court: Supreme Court of North Carolina
• Decided: March 27, 1929
• Status: Published

Opinion

BeogdeN, J.

Can one defendant, sued alone for personal injury, file an answer denying negligence and liability, and tben proceed to allege tbat tbe injury was due to tbe specific acts of negligence of a third party, and thereupon, without asking relief against such third party, have such party brought into tbe suit ?

It is well settled under our system of procedure tbat in order to bold a party in court a cause of action must be alleged against him. If a defendant against whom a cause of action exists alleges a cause of action against a codefendant, growing out of tbe same matter, tben all tbe parties are in court and tbe causes must be tried upon their merits. Bowman v. Greensboro, 190 N. C., 611, 130 S. E., 502; Ballinger v. Thomas, 195 N. C., 517, 142 S. E., 761.

Tbe Ballinger case established two propositions of law:

First, tbat tbe plaintiff bad alleged no cause of action against tbe appealing defendant.

Second, tbat tbe eodefendant, Thomas, bad not sufficiently alleged a cause of action against tbe appealing defendant.

In other words, in tbat case, tbe plaintiff alleged too much, and tbe defendant, Thomas, too little. Tbe demurrer to tbe complaint was sustained by this Court, and tbe demurrer to tbe answer of Thomas was dismissed because tbe defendant, Thomas, in bis answer denied negligence and set up tbe defense tbat a third party, to wit, tbe Railroad Company, was solely responsible for tbe plaintiff’s injury. A mere defense made by one codefendant is not subject to demurrer by tbe other defendant brought into tbe case. Tbe result was tbat tbe Southern Railway Company went out of tbe case because under tbe pleadings it could not be held either by tbe plaintiff or tbe defendant, Thomas.

Applying tbe principle announced in tbe Ballinger case to tbe pleadings in tbe case at bar, it is clear tbat tbe defendant, Dover-Southbound Railroad Company, cannot be held upon tbe present record, and tbe ruling of tbe court is affirmed.

Tbe amendment of C. S., 618, enacted 27 February, 1929, permitting contribution between joint tort-feasors, does not of course apply to tbe case at bar, for tbe reason tbat tbe amendment creating such a cause of action was passed after this suit was commenced.

Affirmed.