Smith v. Whisenhunt

130 S.E.2d 334, 259 N.C. 234, 1963 N.C. LEXIS 535

• Court: Supreme Court of North Carolina
• Decided: April 10, 1963
• Status: Published

Opinion

Higgins, J.

The evidence was ample to show the plaintiff’s damage. On that issue the record does not disclose error. The evidence of negligence on .the part of the original defendants as a proximate cause, or one of the proximate causes, of plaintiff’s damage, was likewise ample. On that issue the record fails to disclose error. The jury’s findings entitled the plaintiff to judgment against the original defendants.

When the original defendants brought the additional defendant into the plaintiff’s case they became plaintiffs with the burden of proving their contribution claim. Bell v. Lacey, 248 N.C. 703, 104 S.E. 2d 833. Since the plaintiff had asserted a claim against the Whisenhunts only, she was disinterested in the outcome on the contribution issue. Pearsall v. Power Co., 258 N.C. 639, 129 S.E. 2d 217; Norris v. Johnson, 246 N.C. 179, 97 S.E. 2d 773.

In the Pearsall case the plaintiff obtained judgment against the original defendant. However, the jury found for the additional defendant on the issue of contribution. The original defendant paid the judgment and appealed. This Court, finding error, granted .a new trial as to contribution. The plaintiff was not a party to that appeal. In this case the jury, having failed to agree as to contribution, the court ordered -the issue retried. The judgment 'entered in the Superior Court is affirmed.

The motion in the Supreme Court to dismiss the appeal is denied. Motion under G.S. 6-21.1 to tax attorney’s fee for the appeal is denied. Attorney’s fees are discretionary in the trial court.

Affirmed.