Denny,
J.
We
think the questions sought to be litigated in tbis action were or might bave been adjudicated in the case of
Hodges, et als. v. Johnson, et als.,
52 F. Supp. 488. Tbe plaintiff herein was made a third party defendant in tbat action, under tbe Federal Rules of Civil Procedure, Rule 14, 28 U.S.C.A., Sec. 723c, governing third party practice. Tbe rule permits a defendant “to bring in a third party, provided tbe third party is liable to tbe defendant by way of contribution, indemnity, or otherwise, for the claim made against him.” 35 C.J.S., p. 993, where tbe reason for tbis rule is also stated, as follows: “Rule 14 was formulated and adopted, in keeping with tbe purpose of all tbe Federal Rules of Civil Procedure, to simplify and expedite procedure, tbe purpose of such rule being to accomplish in one proceeding tbe adjudication of tbe rights of all persons concerned in tbe controversy, to prevent tbe necessity of trying several related claims in different lawsuits and to enable all of them to be disposed of in one action, or, as otherwise expressed, tbe purpose or object of such rule is to avoid circuity of action and multiplicity of suits and to adjust in a single suit tbe several phases of tbe same controversy as it affects tbe parties. Tbe remedy provided by tbis rule must be exercised promptly. The rule should be liberally construed to effectuate its intended purposes, to tbe end tbat circuity of action may be avoided and tbat disputed jural relationships growing out of tbe same matter be resolved in one action, and should be applied whenever tbe application of such rule will simplify procedure, secure a speedy trial, terminate tbe litigation, and reduce costs.”
It was further provided in Rule 13(a), 28 U.S.C.A. 723c, wbicb Rule was in effect in 1943, tbat: “A pleading shall state as a counterclaim any claim, not tbe subject of a pending action, wbicb at tbe time of filing tbe pleading tbe pleader bas against any opposing party, if it arises out of the transaction or occurrence tbat is tbe subject matter of tbe opposing party’s claim and does not require for its adjudication tbe presence of
third parties of whom tbe court cannot acquire jurisdiction.” And in 13(g) of tbe same Rule, that: “A pleading may state as a cross-claim any claim by one party against a co-party arising out of tbe transaction or occurrence that is tbe subject matter either of tbe original action or of a counterclaim therein. Such cross-claim may include a claim that tbe party against whom it is asserted is or may be liable to tbe cross-claimant for all or part of a claim asserted in tbe action against tbe cross-claimant.”
It seems to us that tbe Federal Eules of Civil Procedure, as set forth above, were devised to cover just such a factual situation as that presented on this appeal. Under tbe express provisions of these Eules, it was contemplated that all questions which might arise between tbe defendant and a third party defendant, by way of contribution, indemnity or otherwise, growing out of a pending action, should be adjudicated in one action.
In the case of
Hancock Oil Co. v. Universal Oil Products Co.,
115 F. 2d 45 (Ninth Circuit), it was held that where a counterclaim arises out of the “transaction or occurrence that is the subject matter of the opposing party’s claim,” the counterclaim is compulsory and unless stated in the answer the right to recover thereon is lost.
Furthermore, prior to the amendment of Eule 14, which became effective 19 March, 1948, the rule provided: “The third party defendant is bound by the adjudication of the third party plaintiff’s liability to the plaintiff, as well as of his own to the plaintiff or to the third party plaintiff.”
The question of primary and secondary liability could have been raised in the former litigation, just as it was in the case of
War Emergency Co-Op. Assn. v. Widenhouse,
169 F. 2d 403 (Fourth Circuit), where the facts were essentially on all-fours with those before the Court in
Hodges et als. v. Johnson, et als., supra.
In the last cited case,
Judge Barksdale
held, as a conclusion of law, that “Johnson was an independent contractor, and upon the familiar general rule of
respondeat superior,
there would be no liability upon Jocie for the negligence of Gilmore.” . . . He then said: “However, inasmuch as it appears to me that the situation here presents an exception to the general rule that an employer of an independent contractor is not liable for bodily harm caused by such independent contractor or his servants, I conclude that Jocie is jointly and severally liable with Johnson for the negligence of Johnson’s servant, Gilmore. The exception to which I refer is stated in the “Restatement of the Law of Torts,’ p. 1149, Sec. 428, as follows: ‘An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise'granted by public authority and which involves an unreasonable risk of harm to
others, is subject to liability for bodily barm caused to such others by the negligence of a contractor employed to do work in carrying on the' activity.’ ”
Therefore, it is quite clear that the parties hereto are not only bound by the judgment entered in
Hodges, et als. v. Johnson, et als., supra,
as to the questions raised and determined therein, but the judgment is
res judicata
on the issues that could have been raised and adjudicated therein.
Angel v. Bullington,
33 U.S. 183, 67 S. Ct. 657, 91 L. Ed. 832;
Distributing Co. v. Carraway,
196 N.C. 58, 144 S.E. 535;
Moore v. Harkins,
179 N.C. 167, 101 S.E. 564;
Griffin v. Griffin,
183 Va. 443, 32 S.E. 2d 700;
Brunner v. Cook,
134 Va. 266, 114 S.E. 650.
Moreover, in the case of
Brown v. Truck Lines,
227 N.C. 299, 42 S.E. 2d 71, where Brown, the owner of a truck, leased it to a franchise carrier, we held that the relationship of employer and employee existed between Brown, the lessor, who was also the driver of the truck, and the lessee, the owner of the franchise. The defendant, lessee, contended Brown was an independent contractor and besides he had agreed to indemnify and save harmless the lessee against any claim arising from the operation of the leased vehicle. The agreement to indemnify was in the identical language as that contained in the lease now under consideration.
Devin, J.,
in speaking for the Court, said: “The provision in the contract in the case at bar whereby the lessor Brown agreed to indemnify and save harmless the lessee from any claim arising from the operation of the vehicle may not be held to relieve the defendant, if as a matter of law under the facts found liability under the Workmen’s- Compensation Act accrued, as provided by the statute. G.S. 97-6.
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Denny,
J.
We
think the questions sought to be litigated in tbis action were or might bave been adjudicated in the case of
Hodges, et als. v. Johnson, et als.,
52 F. Supp. 488. Tbe plaintiff herein was made a third party defendant in tbat action, under tbe Federal Rules of Civil Procedure, Rule 14, 28 U.S.C.A., Sec. 723c, governing third party practice. Tbe rule permits a defendant “to bring in a third party, provided tbe third party is liable to tbe defendant by way of contribution, indemnity, or otherwise, for the claim made against him.” 35 C.J.S., p. 993, where tbe reason for tbis rule is also stated, as follows: “Rule 14 was formulated and adopted, in keeping with tbe purpose of all tbe Federal Rules of Civil Procedure, to simplify and expedite procedure, tbe purpose of such rule being to accomplish in one proceeding tbe adjudication of tbe rights of all persons concerned in tbe controversy, to prevent tbe necessity of trying several related claims in different lawsuits and to enable all of them to be disposed of in one action, or, as otherwise expressed, tbe purpose or object of such rule is to avoid circuity of action and multiplicity of suits and to adjust in a single suit tbe several phases of tbe same controversy as it affects tbe parties. Tbe remedy provided by tbis rule must be exercised promptly. The rule should be liberally construed to effectuate its intended purposes, to tbe end tbat circuity of action may be avoided and tbat disputed jural relationships growing out of tbe same matter be resolved in one action, and should be applied whenever tbe application of such rule will simplify procedure, secure a speedy trial, terminate tbe litigation, and reduce costs.”
It was further provided in Rule 13(a), 28 U.S.C.A. 723c, wbicb Rule was in effect in 1943, tbat: “A pleading shall state as a counterclaim any claim, not tbe subject of a pending action, wbicb at tbe time of filing tbe pleading tbe pleader bas against any opposing party, if it arises out of the transaction or occurrence tbat is tbe subject matter of tbe opposing party’s claim and does not require for its adjudication tbe presence of
third parties of whom tbe court cannot acquire jurisdiction.” And in 13(g) of tbe same Rule, that: “A pleading may state as a cross-claim any claim by one party against a co-party arising out of tbe transaction or occurrence that is tbe subject matter either of tbe original action or of a counterclaim therein. Such cross-claim may include a claim that tbe party against whom it is asserted is or may be liable to tbe cross-claimant for all or part of a claim asserted in tbe action against tbe cross-claimant.”
It seems to us that tbe Federal Eules of Civil Procedure, as set forth above, were devised to cover just such a factual situation as that presented on this appeal. Under tbe express provisions of these Eules, it was contemplated that all questions which might arise between tbe defendant and a third party defendant, by way of contribution, indemnity or otherwise, growing out of a pending action, should be adjudicated in one action.
In the case of
Hancock Oil Co. v. Universal Oil Products Co.,
115 F. 2d 45 (Ninth Circuit), it was held that where a counterclaim arises out of the “transaction or occurrence that is the subject matter of the opposing party’s claim,” the counterclaim is compulsory and unless stated in the answer the right to recover thereon is lost.
Furthermore, prior to the amendment of Eule 14, which became effective 19 March, 1948, the rule provided: “The third party defendant is bound by the adjudication of the third party plaintiff’s liability to the plaintiff, as well as of his own to the plaintiff or to the third party plaintiff.”
The question of primary and secondary liability could have been raised in the former litigation, just as it was in the case of
War Emergency Co-Op. Assn. v. Widenhouse,
169 F. 2d 403 (Fourth Circuit), where the facts were essentially on all-fours with those before the Court in
Hodges et als. v. Johnson, et als., supra.
In the last cited case,
Judge Barksdale
held, as a conclusion of law, that “Johnson was an independent contractor, and upon the familiar general rule of
respondeat superior,
there would be no liability upon Jocie for the negligence of Gilmore.” . . . He then said: “However, inasmuch as it appears to me that the situation here presents an exception to the general rule that an employer of an independent contractor is not liable for bodily harm caused by such independent contractor or his servants, I conclude that Jocie is jointly and severally liable with Johnson for the negligence of Johnson’s servant, Gilmore. The exception to which I refer is stated in the “Restatement of the Law of Torts,’ p. 1149, Sec. 428, as follows: ‘An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise'granted by public authority and which involves an unreasonable risk of harm to
others, is subject to liability for bodily barm caused to such others by the negligence of a contractor employed to do work in carrying on the' activity.’ ”
Therefore, it is quite clear that the parties hereto are not only bound by the judgment entered in
Hodges, et als. v. Johnson, et als., supra,
as to the questions raised and determined therein, but the judgment is
res judicata
on the issues that could have been raised and adjudicated therein.
Angel v. Bullington,
33 U.S. 183, 67 S. Ct. 657, 91 L. Ed. 832;
Distributing Co. v. Carraway,
196 N.C. 58, 144 S.E. 535;
Moore v. Harkins,
179 N.C. 167, 101 S.E. 564;
Griffin v. Griffin,
183 Va. 443, 32 S.E. 2d 700;
Brunner v. Cook,
134 Va. 266, 114 S.E. 650.
Moreover, in the case of
Brown v. Truck Lines,
227 N.C. 299, 42 S.E. 2d 71, where Brown, the owner of a truck, leased it to a franchise carrier, we held that the relationship of employer and employee existed between Brown, the lessor, who was also the driver of the truck, and the lessee, the owner of the franchise. The defendant, lessee, contended Brown was an independent contractor and besides he had agreed to indemnify and save harmless the lessee against any claim arising from the operation of the leased vehicle. The agreement to indemnify was in the identical language as that contained in the lease now under consideration.
Devin, J.,
in speaking for the Court, said: “The provision in the contract in the case at bar whereby the lessor Brown agreed to indemnify and save harmless the lessee from any claim arising from the operation of the vehicle may not be held to relieve the defendant, if as a matter of law under the facts found liability under the Workmen’s- Compensation Act accrued, as provided by the statute. G.S. 97-6. The act of the defendant in accord with the provisions of the lease in placing its own license plates on Brown’s truck under the circumstances disclosed, thus giving it the status and holding it out as its own vehicle for the purpose of this trip, a procedure which alone authorized its operation, must he regarded as an assumption of such control as would defeat the plea of non-liability for injury to the driver on the ground of independent contractor.”
The holder of a franchise from the Interstate Commerce Commission, for the transportation of goods in interstate commerce, cannot escape liability to the public for the negligent operation of trucks leased from one not authorized to transport goods in interstate commerce, and operated under its own franchise and license plates for the transportation of goods in interstate commerce.
Brown v. Truck Lines, supra; Wood v. Miller,
226 N.C. 567, 39 S.E. 2d 608;
Hodges et als. v. Johnson et als., supra; Steffens v. Continental Freight Forwarders Co.,
66 Ohio App. 534;
Kimble v. Wilson,
352 Pa. 275; Restatement of the Law of Torts, Section 428.
Tbe plaintiff and tbe defendant herein were parties to tbe action in
Hodges, et als. v. Johnson, et als., supra,
and tbe judgment therein bold-ing them to be jointly and severally liable to tbe plaintiffs in that action, was tantamount to bolding them to be joint tort-feasors as a matter of law, and no appeal having been taken therefrom,
Angel v. Bullington, supra,
the plaintiff is not entitled to re-litigate matters which were or might have been adjudicated in that action.
Tbe decisions of our Federal Courts must be accorded tbe same faith and credit by us that we are required to give to tbe judicial proceedings of another State.
Knights of Pythias v. Meyer,
264 U.S. 30, 68 L. Ed. 885;
Hancock Nat. Bank v. Farnum,
176 U.S. 640, 44 L. Ed. 619;
Lewis v. Furr,
228 N.C. 89, 44 S.E. 2d 604;
Suskin v. Hodges,
216 N.C. 333, 4 S.E. 2d 891; G.S. 8-4.
Tbe demurrer interposed below should have been sustained, accordingly tbe judgment overruling tbe demurrer is
Eeversed.