Denny, J.
We shall first consider the challenge to the jurisdiction of the court. It is contended that the N. C. Industrial Commission has
exclusive jurisdiction of this cause. The contention cannot be upheld in light of the provisions of our Workmens’ Compensation Act and the facts as alleged in plaintiff’s complaint.
It is provided in G.S. 97-10 that the rights and remedies granted to an employee, where he and his employer have accepted the provisions of the Workmen’s Compensation Act, shall exclude all other rights and remedies of such employee, as against his employer at common law, or otherwise, on account of any injury. However, the statute further provides “that in any case where such employee . . . may have a right to recover damages for such injury . . . from any person other than the employer, compensation shall be paid in accordance with the provisions of this chapter: Provided, further, that after the industrial commission shall have issued an award, or the employer or his carrier has admitted liability in writing and filed same with the industrial commission, the employer or his carrier shall have the exclusive right to commence an action in his own name and/or in the name of the injured employee or his personal representative for damages on account of such injury or death, . . .If, however, the employer does not commence such action within six months from the date of such injury or death, the employee, or his personal representative, shall thereafter have the right to bring the action in his own name, and any amount recovered shall be paid in the same manner as if the employer had brought the action.”
Peterson v. McManus,
208 N.C. 802, 182 S.E. 483;
Ikerd v. R. R.,
209 N.C. 270, 183 S.E. 402, 106 A.L.R. 1061n;
Mack v. Marshall Field & Co.,
217 N.C. 55, 6 S.E. 2d 889;
Sayles v. Loftin,
217 N.C. 674, 9 S.E. 2d 393;
Whitehead & Anderson, Inc., v. Branch,
220 N.C. 507, 17 S.E. 2d 637;
Eledge v. Light Co.,
230 N.C. 584, 55 S.E. 2d 179.
The plaintiff was injured on 28 March, 1948, and at the time of the institution of this action, on 26 March, 1949, more than six months having expired from the date of her injury, she was authorized by the statute to institute an action against any third party or parties who in her opinion contributed to her injury, and the defendant is in no wise affected by our Workmen’s Compensation Act. It is an outsider, a third party, and is given no rights nor is it relieved of any liability under its provisions.
Hinson v. Davis,
220 N.C. 380, 17 S.E. 2d 348.
Likewise, on the question of parties, since it appears on the face of the complaint, that no award has been made by the N. C. Industrial Commission, and neither the employer nor its carrier has admitted or accepted liability, they are neither necessary nor proper parties. The employer or his carrier becomes subrogated to the rights of the employee, under the provisions of our Workmen’s Compensation Act, only after the payment of an award to the injured employee, or his personal representative, or where the employer or his carrier has admitted liability in writing and
filed same witb the N. C. Industrial Commission, G.S. 97-10. Moreover, when the employer or his carrier is subrogated to the rights of an employee, the action may be brought in the name of the injured employee or his personal representative, and neither the employer nor his insurance carrier is a necessary or proper party to the action.
Brown v. R.R.,
202 N.C. 256, 162 S.E. 613;
Eledge v. Light Co., supra.
The defendant also contends the Medical College of Virginia is- a necessary and proper party to this action. We do not agree with this contention. The plaintiff alleges that her injury was proximately caused by the negligence of the defendant. The burden is upon her to prove her allegations in this respect, and she may do so by proving that the negligence' of the defendant was the proximate cause, or one of the proximate causes, of her injury. And it makes no difference, in so far as her right to maintain this action is concerned, whether or not the negligence of the Medical College of Virginia and the negligence of the defendant jointly and severally produced her injury. For where negligence is joint and several, the injured party may elect to sue either of the joint tort-feasors separately or any or all of them together.
Hough v. R. R.,
144 N.C. 692, 57 S.E. 469;
Hipp v. Farrell,
169 N.C. 551, 86 S.E. 570;
Charnock v. Taylor,
223 N.C. 360, 26 S.E. 2d 911, 148 A.L.R. 1126;
Godfrey v. Power Co.,
223 N.C. 647, 27 S.E. 2d 736.
The final question for determination is whether or not the complaint states a cause of action against the defendant.
The
lex fori
governs the procedure in this cause of action; but the
lex loci
determines the substantive rights of the parties. Hence, their substantive rights are governed by the law of Virginia.
Charnock v. Taylor, supra.
The demurrer was interposed on the ground that no privity of contract exists between this plaintiff and the defendant. Therefore, it contends the action is not maintainable. We do not concur in this view. Ordinarily an action in tort, founded upon a breach of contract, cannot be maintained by one who is not a party or privy to the contract. 12 Am. Jur. 818. But the general rule is subject to certain well recognized exceptions. And among the exceptions is where a dangerous instrumentality is involved, or where the act complained of is imminently dangerous to the lives and property of others. In such case the injured party, whether a party or privy to the contract or not, may maintain an action against the party whose breach of the contract resulted in his injury. Even so, such action is not bottomed on the breach of the contract, but on the alleged negligence committed in its breach, which negligence constitutes a breach of duty imposed by law. 12 Am. Jur. 820,
et seq.
It is said in 45 C. J. 650: “The law may impose duties additional tó those specified in a contract or independent of it, and one may owe two
distinct duties in respect of tbe same thing, one of a special character to a particular individual, growing out of special relation to him, and another of a general character to those who would necessarily be exp.osed to risks or danger or loss through the negligent discharge of such duty. Privity of contract is not necessary where the duty which was breached, although connected with the subject matter of a contract, was not created by the contract, as in a ease where one who has been employed to perform certain work is guilty of such negligence in connection with the performance thereof as to cause injury to a person other than his employer, or where the thing dealt' with is inherently dangerous.”
Likewise, in 38 Am. Jur. 664, it is said: “No privity of contract is essential to support liability for negligence in respect of acts or instru-mentalities which are imminently dangerous. The liability in such instances is independent of privity of contract and depends merely on the duty of every man to act so as not to injure the persons or property of others.” Cooley on Torts, Vol.
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Denny, J.
We shall first consider the challenge to the jurisdiction of the court. It is contended that the N. C. Industrial Commission has
exclusive jurisdiction of this cause. The contention cannot be upheld in light of the provisions of our Workmens’ Compensation Act and the facts as alleged in plaintiff’s complaint.
It is provided in G.S. 97-10 that the rights and remedies granted to an employee, where he and his employer have accepted the provisions of the Workmen’s Compensation Act, shall exclude all other rights and remedies of such employee, as against his employer at common law, or otherwise, on account of any injury. However, the statute further provides “that in any case where such employee . . . may have a right to recover damages for such injury . . . from any person other than the employer, compensation shall be paid in accordance with the provisions of this chapter: Provided, further, that after the industrial commission shall have issued an award, or the employer or his carrier has admitted liability in writing and filed same with the industrial commission, the employer or his carrier shall have the exclusive right to commence an action in his own name and/or in the name of the injured employee or his personal representative for damages on account of such injury or death, . . .If, however, the employer does not commence such action within six months from the date of such injury or death, the employee, or his personal representative, shall thereafter have the right to bring the action in his own name, and any amount recovered shall be paid in the same manner as if the employer had brought the action.”
Peterson v. McManus,
208 N.C. 802, 182 S.E. 483;
Ikerd v. R. R.,
209 N.C. 270, 183 S.E. 402, 106 A.L.R. 1061n;
Mack v. Marshall Field & Co.,
217 N.C. 55, 6 S.E. 2d 889;
Sayles v. Loftin,
217 N.C. 674, 9 S.E. 2d 393;
Whitehead & Anderson, Inc., v. Branch,
220 N.C. 507, 17 S.E. 2d 637;
Eledge v. Light Co.,
230 N.C. 584, 55 S.E. 2d 179.
The plaintiff was injured on 28 March, 1948, and at the time of the institution of this action, on 26 March, 1949, more than six months having expired from the date of her injury, she was authorized by the statute to institute an action against any third party or parties who in her opinion contributed to her injury, and the defendant is in no wise affected by our Workmen’s Compensation Act. It is an outsider, a third party, and is given no rights nor is it relieved of any liability under its provisions.
Hinson v. Davis,
220 N.C. 380, 17 S.E. 2d 348.
Likewise, on the question of parties, since it appears on the face of the complaint, that no award has been made by the N. C. Industrial Commission, and neither the employer nor its carrier has admitted or accepted liability, they are neither necessary nor proper parties. The employer or his carrier becomes subrogated to the rights of the employee, under the provisions of our Workmen’s Compensation Act, only after the payment of an award to the injured employee, or his personal representative, or where the employer or his carrier has admitted liability in writing and
filed same witb the N. C. Industrial Commission, G.S. 97-10. Moreover, when the employer or his carrier is subrogated to the rights of an employee, the action may be brought in the name of the injured employee or his personal representative, and neither the employer nor his insurance carrier is a necessary or proper party to the action.
Brown v. R.R.,
202 N.C. 256, 162 S.E. 613;
Eledge v. Light Co., supra.
The defendant also contends the Medical College of Virginia is- a necessary and proper party to this action. We do not agree with this contention. The plaintiff alleges that her injury was proximately caused by the negligence of the defendant. The burden is upon her to prove her allegations in this respect, and she may do so by proving that the negligence' of the defendant was the proximate cause, or one of the proximate causes, of her injury. And it makes no difference, in so far as her right to maintain this action is concerned, whether or not the negligence of the Medical College of Virginia and the negligence of the defendant jointly and severally produced her injury. For where negligence is joint and several, the injured party may elect to sue either of the joint tort-feasors separately or any or all of them together.
Hough v. R. R.,
144 N.C. 692, 57 S.E. 469;
Hipp v. Farrell,
169 N.C. 551, 86 S.E. 570;
Charnock v. Taylor,
223 N.C. 360, 26 S.E. 2d 911, 148 A.L.R. 1126;
Godfrey v. Power Co.,
223 N.C. 647, 27 S.E. 2d 736.
The final question for determination is whether or not the complaint states a cause of action against the defendant.
The
lex fori
governs the procedure in this cause of action; but the
lex loci
determines the substantive rights of the parties. Hence, their substantive rights are governed by the law of Virginia.
Charnock v. Taylor, supra.
The demurrer was interposed on the ground that no privity of contract exists between this plaintiff and the defendant. Therefore, it contends the action is not maintainable. We do not concur in this view. Ordinarily an action in tort, founded upon a breach of contract, cannot be maintained by one who is not a party or privy to the contract. 12 Am. Jur. 818. But the general rule is subject to certain well recognized exceptions. And among the exceptions is where a dangerous instrumentality is involved, or where the act complained of is imminently dangerous to the lives and property of others. In such case the injured party, whether a party or privy to the contract or not, may maintain an action against the party whose breach of the contract resulted in his injury. Even so, such action is not bottomed on the breach of the contract, but on the alleged negligence committed in its breach, which negligence constitutes a breach of duty imposed by law. 12 Am. Jur. 820,
et seq.
It is said in 45 C. J. 650: “The law may impose duties additional tó those specified in a contract or independent of it, and one may owe two
distinct duties in respect of tbe same thing, one of a special character to a particular individual, growing out of special relation to him, and another of a general character to those who would necessarily be exp.osed to risks or danger or loss through the negligent discharge of such duty. Privity of contract is not necessary where the duty which was breached, although connected with the subject matter of a contract, was not created by the contract, as in a ease where one who has been employed to perform certain work is guilty of such negligence in connection with the performance thereof as to cause injury to a person other than his employer, or where the thing dealt' with is inherently dangerous.”
Likewise, in 38 Am. Jur. 664, it is said: “No privity of contract is essential to support liability for negligence in respect of acts or instru-mentalities which are imminently dangerous. The liability in such instances is independent of privity of contract and depends merely on the duty of every man to act so as not to injure the persons or property of others.” Cooley on Torts, Vol. 3, p. 498;
Nat. Savings Bank v. Ward,
100 U.S. 195, 25 L. Ed. 621;
Goodlander Mill Co. v. Standard Oil Co.
(C.C.A. 8th) 63 F. 400, 27 L.R.A. 583;
American Oil Co. v. Nichols,
156 Va. 1, 157 S.E. 754;
Standard Oil Co. v. Wakefield,
102 Va. 824, 47 S.E. 830, 66 L.R.A. 792;
MacPherson v. Buick Motor Co.,
217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916 E. 696;
Devlin v. Smith,
89 N.Y. 470, 42 Am. Rep. 311.
In the case of
Standard Oil Co. v. Wakefield’s Admr., supra,
thStandard Oil Company shipped to the City of Richmond a car of naphtha, for use in making gas. In unloading the car, owing to a defective valve the flow could not be regulated, the naphtha escaped, ran into a sewer near the gas works, was ignited and killed an employee of the City who was helping to unload the car. The Oil Company contended, as the defendant does here, that since no contractual relationship existed between it and the plaintiff’s intestate, it did not owe to him the duty of keeping the valve in the car in a reasonably safe condition, and was not, therefore, guilty of any negligence as to him. But the Court said: “It seems to be a well-settled rule of the common law that a person who negligently uses a dangerous instrument or article, or causes or authorizes its use by another in such a manner or under such circumstances that he has reason to know that it is likely to produce injury, is responsible for the natural and probable consequences of his act to any person injured who is not himself at fault. The liability does not depend upon privity of contract between the parties to the action, but on the duty of every man to so use his own property as not to injure the persons or property of others.” This decision was approved and followed in
American Oil Co. v. Nichols, supra.
The facts in
Overstreet v. Security Storage & Safe Deposit Co.,
148 Va. 306, 138 S.E. 552, relied on by the appellant, are distinguishable from those alleged in the instant case.
We understand the elevator involved in this action was what is known as an automatic electrically operated elevator, and was equipped. with various safety devices, including electric interlocks. Such safety devices, when in proper condition, make it impossible, in its ordinary use, to open a door to the elevator shaft, unless the cage of the elevator is at the floor where such door is located.
Hood v. Mitchell,
206 N.C. 156, 173 S.E. 61;
Jacobi v. Builder’s Realty Co.,
174 Cal. 708, 164 Pac. 394, 69 L.R.A. 1917-E, 696. And while an elevator is not necessarily an inherently dangerous instrumentality, it certainly becomes imminently dangerous unless it is kept in proper repair. The defendant obligated itself to keep the elevator in question in safe operating condition and to inspect it weekly. The obligation was a continuing one. It had been receiving a substantial monthly consideration for this maintenance and inspection service since 1 August, 1945. It is now in no position, under the facts alleged, to deny that it owed any legal duty to the plaintiff or others quartered in Memorial Hall by the Medical College of Virginia. Apparently the elevator was being maintained for the use of students and others, either attending or employed by the Medical College of Virginia, who were quartered in this dormitory.
Whether or not the plaintiff can prove her allegations of negligence against the defendant, is a matter with which we are not concerned on this appeal. But, on the record before us, we think his Honor was correct in overruling the demurrer -to the jurisdiction of the court, for lack of necessary and proper parties, and on the ground that the complaint fails to state a cause of action.
The judgment of the court below is
Affirmed.