Johnson v. City of Asheville

196 N.C. 550

• Court: Supreme Court of North Carolina
• Decided: January 23, 1929
• Status: Published

Opinion

Beogden, J.

Under wbat circumstances may one joint tort-feasor recover indemnity from another joint tort-feasor?

The identical question is discussed in the case of Taylor v. Construction Co., 195 N. C., 30, 141 S. E., 492. The principle of liability was thus declared : “Where one of them is only passively negligent, but is exposed to liability through the positive acts and actual negligence of the other, the parties are not in equal fault as to each other, though both are equally liable to the injured person. . . . The further general principle is announced, however, in many cases, that where one does the act which produces the injury, and the other does not join in the act, but is thereby exposed to liability and suffers damage, the latter may recover against the principal delinquent, and the law will inquire into the real delinquency, and place the ultimate liability upon him whose fault was the primary cause of the injury.” Gregg v. Wilmington, 155 N. C., 18, 70 S. E., 1070; Commissioners v. Indemnity Co., 155 N. C., 219, 71 S. E., 214; Doles v. R. r., 160 N. C., 318, 75 S. E., 722; Bowman v. Greensboro, 190 N. C., 611, 130 S. E., 502.

The principles of liability declared in the cases mentioned, entitled the City of Asheville to have the issue tendered by it considered and determined according to law.

Partial new trial.