Iowa National Mutual Insurance v. Surratt

200 S.E.2d 220, 19 N.C. App. 745, 1973 N.C. App. LEXIS 1756

• Court: Court of Appeals of North Carolina
• Decided: November 14, 1973
• Docket: No. 7326DC716
• Status: Published

Opinion

HEDRICK, Judge.

There being no genuine issue as to any material fact, the only question which we must resolve on this appeal is whether plaintiff, as a matter of law, is entitled to contribution from the defendant. A basic prerequisite to plaintiff’s right of contribution is that there be joint tort liability. G.S. 1B-I(a); Pearsall v. Power Co., 258 N.C. 639, 129 S.E. 2d 217 (1962); Wise v. Vincent and Stronach v. Vincent, 265 N.C. 647, 144 S.E. 2d 877 (1965); Clemmons v. King, 265 N.C. 199, 143 S.E. 2d 83 (1965). In the former action instituted by Springs, plaintiff’s insureds and Barbara Rice Surratt were sued as joint tortfeasors. If the jury had returned a verdict finding all defendants negligent, then the present plaintiff’s contention would be meritorious; however, in the original action, the jury found that the injuries and damages sustained by the plaintiff, Paul Springs, did not result from any negligence of the co-defendant Surratt. Plaintiff, in the present case, appears to be acting under the misconception that a jury finding of contributory negligence on Barbara Rice Surratt’s part in her crossclaim against the present plaintiff’s insureds in the original Springs’ action was tantamount to a determination of joint tort liability. Clearly, this is an incorrect interpretation of the judgment and verdict in the original case.

The judgment in the Springs’ action is res judicata as to the matter of contribution between plaintiff and defendant Barbara Rice Surratt.

The judgment below is

Affirmed.

Judges Britt and Parker concur.