Pearsall v. Duke Power Company

Supreme Court of North Carolina

Pearsall v. Duke Power Company

129 S.E.2d 217, 258 N.C. 639, 1963 N.C. LEXIS 448

CourtSupreme Court of North Carolina

DecidedFebruary 1, 1963

Docket607

StatusPublished

Cited by10 cases

This text of 129 S.E.2d 217 (Pearsall v. Duke Power Company) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pearsall v. Duke Power Company, 129 S.E.2d 217, 258 N.C. 639, 1963 N.C. LEXIS 448 (N.C. 1963).

Pincite

Opinion

Rodman, J.

The appeal presents these questions: (1) Did Duke, by paying and taking an assignment of the judgment which plaintiff had obtained against it, forfeit its right to have its claim for contribution reviewed by appeal? (2) If not, has Duke shown prejudicial error entitling it to a new trial on its claim for contribution?

In stating the questions for decision we reverse the order stated by the parties, for the second need not be answered if, as appellee asserts, the first should be answered in the affirmative. In our opinion that question requires a negative answer, if a reasonable interpretation be given to c. 68, P.L. 1929, now the last portion of the first paragraph of G.S. 1-240.

Prior to the enactment of that statute one tort-feasor was, as a rule, not entitled to contribution from another. Doles v. R.R., 160 N.C. 318, 75 S.E. 722; White v. Realty Co., 182 N.C. 536, 109 S.E. 564. The statute was enacted to reverse the rule declared in the cited and similar cases. Contribution was made the rule and not the exception. Of course there can be no contribution unless the parties -are joint tort-feasors.

The statute made no attempt to interfere with the right of the injured party to decide who would be called on for compensation. A defendant sued in tort cannot compel plaintiff to sue all responsible for the damage, Bell v. Lacey, 248 N.C. 703, 104 S.E. 2d 833, but the party sued may have contribution from all responsible for the damage. This right may be enforced in either of two ways. The party sued may wait until a judgment has been obtained against him, whereupon he *643 may maintain -an action against the other tortfeasors; or defendant may, in the action against him, .have the 'other tortfeasors made parties. In either event the party called on to compensate the injured party is a plaintiff in the action against his alleged joint tortfeasors. Bell v. Lacey, supra; Norris v. Johnson, 246 N.C. 179, 97 S.E. 2d 773.

Here plaintiff has established Duke’s duty to compensate her. Duke, by its failure to perfect its appeal from the adjudication of its liability to plaintiff and the discharge thereof, is not thereby barred from asserting its right against Elkins. The appeal is based on assertion of error with respect to Duke’s right of action for contribution against Elkins. The right to appeal is accorded it by G.S. 1-277. It is not a -condition precedent to the exercise of this right that it also appeal from the judgment rendered in favor of plaintiff.

Unless Duke can obtain a new trial on its claim against the additional defendants, the verdict and judgment which it seeks to review will be a bar to any action it may hereafter assert for contribution. It would be manifestly unjust to odmpel Duke to withhold compensation from plaintiff until its rights, if -any, against Elkins had been determined.

Since Duke has the right to appeal because of asserted error resulting in a denial of its -claim for contribution, an -answer must be given to the second question.

The negligent act of Elkins as -charged by Duke was a left turn by Elkins from Gorrell Street into Asheboro Street before he had reached the intersection -of these streets, forcing Duke, who had the right of way at the point where the turn was made, to stop suddenly to avoid a collision.

The parties used at the trial a map for the purpose -of illustrating the testimony given by the witnesses. It shows the location of some but not all of the structures which front the streets. It does show the manner in which the streets join. For convenience in understanding the factual situation -as described by the witnesses, that portion of the map showing the intersection and the area adjacent thereto is reproduced and made -a part hereof.

*644 KtDnV1pYZ9b98zK7exqC9u6Y

Free access — add to your briefcase to read the full text and ask questions with AI