Tarkington v. Rock Hill Printing & Finishing Co.

230 N.C. 354

• Court: Supreme Court of North Carolina
• Decided: May 4, 1949
• Status: Published

Opinion

Stagy, C. J.

We have here for consideration, (1) the ruling on the plea in bar of the alleged joint tort-feasor, (2) the competency of evidence, (3) the argument of counsel to the jury, and (4) the correctness and adequacy of the charge.

1. The Plea in Bar of Alleged Joint Tort-feasor: The corporate defendant and the driver of its truck, by plea, cross-action and motion in each case, had the driver of the automobile in which the plaintiffs were riding, brought in as an alleged joint tort-feasor, for the purpose of enforcing contribution of his proportionate part of any recovery which the plaintiffs might obtain in these actions. The driver of the automobile, thus brought in, interposed a plea in bar to the maneuver of the original defendants on the ground that in a prior action wherein he was plaintiff and they defendants, the jury exculpated him from any contributory liability for the collision in suit. The judgment in that ease showing the jury’s answers to the issues of negligence, contributory negligence and property damage, was before the court on the hearing of the plea, and there was no challenge to its significance or correctness. This judgment contains the recital that as between the parties then before the court, the plaintiff was not contributorily negligent or properly chargeable by the defendants therein with any joint tort-feasorship. Charnock v. Taylor, 223 N.C. 360, 26 S.E. 2d 911.

It is true that the right of one joint tort-feasor to enforce contribution against another is said to spring from the plaintiff’s suit, and the present action was not then before the court. This right of contribution, however, projects itself beyond the plaintiff’s suit, and is not dependent upon the plaintiff’s continued right to sue both or all the joint tort-feasors. Godfrey v. Power Co., 223 N.C. 647, 27 S.E. 2d 736. It is the joint tort and common liability to suit which gives rise to the right to “enforce contribution” under the statute. G.S. 1-240. The prior suit as between the then parties litigant determined the question whether the driver of the automobile was contributorily negligent or a joint tort-feasor with the owner and driver of the truck in bringing about the collision. Hence, as between the parties there litigant, this matter would seem to be res judicata. Cannon v. Cannon, 223 N.C. 664, 28 S.E. 2d 240; 30 Am. Jur. 908, et seq. But, of course, the judgment there would not be binding on the plaintiffs here. They were not parties to that suit, and they are entitled to pursue their rights in their own way. Meacham v. Larus & Bros. Co., 212 N.C. 646, 194 S.E. 99; Anno. 133 A.L.R. 185.

The appellants contend, therefore, that as the judgment in the prior action between the owners and drivers of the two vehicles is not binding on the plaintiffs here, who were passengers in the Tarkington car, they, the appellants, are entitled to have the issue of joint liability as between themselves and the new defendant determined in the present suit. Meacham v. Larus & Bros. Co., supra; Neenan v. Transp. Co., 261 N.Y. 159, 184 N.E. 744; Anno. 133 A.L.R. 181. The conclusion is a non sequitur. The issue of contributory liability as between the defendants has already been determined. Solicitude for the rights of the plaintiffs, which they may elect not to pursue, gives the defendants no cause of action. The right to contribution comes from the Act of Assembly, and it is to be enforced secundum formam statuti — “according to the form of the statute.” Hoft v. Mohn, 215 N.C. 397, 2 S.E. 2d 23.

The procedure of the original defendants in bringing in the driver of the Tarkington car as an alleged joint tort-feasor, is quite permissible, Freeman v. Thompson, 216 N.C. 484, 5 S.E. 2d 434, but here they were met at the threshold with a plea in bar as between themselves and the new defendant, and the plaintiffs have refused to join them in their allegation of joint tort-feasorship. Hence, they were left to their own resources as against the new defendant, who exhibited a judgment showing that the allegation of his contributory liability had already been tried out in an action between them.

The statute gives to one joint tort-feasor, who is sued, the right to bring' in others jointly liable with him and to require them to contribute proportionately to the payment of any judgment which the plaintiff may recover, but this would not include the right to step into the plaintiff’s shoes and prosecute any claim which he might have against them. The right here sought to be enforced is one of contribution, and not one of subrogation. Charnock v. Taylor, supra.

Moreover, the plaintiffs have elected not to sue the driver of the Tarkington car. They have alleged no cause of action against him, and can take no judgment against him. Pascal and Lambert v. Burke Transit Co., 229 N.C. 435, 50 S.E. 2d 534; Wilson v. Massagee, 224 N.C. 705, 32 S.E. 2d 335, 156 A.L.R. 922. And even if they had sued the driver of the Tarkington car along with the present defendants and recovered against all on issues of joint and several liability as to them, this would have presented no more than a case of contrary verdicts by different juries and opposing judgments, such as were before the Court in Neenan v. Transp. Co., supra, cited by the appellants. This is not our case.

There was no error in sustaining the plea in bar.

2. Exceptions to Admission of Evidence: Over objection of defendants, the driver of the Tarkington car was allowed to state that he would have passed the defendant’s truck several feet before reaching the highway intersection, if the truck had not pushed him off the road. It is the contention of the appellants that this was a conclusional assertion of the witness and necessarily invaded the province of the jury. Tyndall v. Hines Co., 226 N.C. 620, 39 S.E. 2d 828. The statement, we think, falls more nearly under the ruling in Myers v. Utilities Co., 208 N.C. 293, 180 S.E. 694, where on a similar objection, the testimony of the witness was characterized as a “shorthand statement of the fact,” Hudson v. R. R., 176 N.C. 488, 97 S.E. 388, or as “the statement of a physical fact rather than the expression of a theoretical opinion,” and hence unobjectionable. Burney v. Allen, 127 N.C. 476, 37 S.E. 501. The exception appears insubstantial.

3. Argument of Counsel to the Jury: Over objection of defendants, counsel for plaintiffs in his argument to the jury, was allowed to comment on the prior suit between R. O. Tarkington and the defendants, and to call their attention to the fact that “this jury has no interest in any law suit that has been, or may be, between Mr. Tarkington and the defendants. . . . We aren’t trying any lawsuit that Mr. Tarkington has any interest in. . . . It appears to me tbat counsel for tbe defendants thinks we are trying a lawsuit between Mr. Tarkington and tbe defendants. ... I say tbat lawsuit bas been tried, and bas been disposed of, and is not before tbis jury.”

It is tbe- contention of tbe defendants tbat there was no evidence offered on tbe bearing to support tbis argument. Tbis may be conceded. Tbe facts stated do appear in tbe pleadings, however, and they were read to tbe jury. 53 Am. Jur. 393. Moreover, R. O. Tarkington was brought into tbe case by tbe defendants, and bis plea in bar was fully argued to tbe court in tbe presence of tbe jury. So, tbe jury was well aware of what counsel was saying, and to which tbe defendants objected. Tbe argument seems to have been in reply to some contention advanced by tbe defendants. But however tbis may be, it appears harmless in tbe light of tbe record. Hodges v. Wilson, 165 N.C. 323, 81 S.E. 340. There was nothing significant in tbe argument which the jury bad not already beard from defendants’ counsel in their argument on tbe plea in bar. Tbe exception seems feckless.

4. The Correciness and Adequacy of the Charge: Tbe appellants have pressed their exceptions to tbe charge with assurance and manifest confidence.

At tbe beginning of tbe court’s instructions on tbe amount of damages, if any, to be awarded, it was said: “Now, tbat, gentlemen of tbe jury, is a question which rests solely within your discretion.” Exception.

Tbe court then proceeded to call tbe jury’s attention to tbe evidence in tbe case, and for their guidance, stated tbe rule of admeasurement correctly, and concluded as follows: “And finally, in other words, gentlemen of tbe jury, tbe matter rests entirely within your discretion and in tbe bounds and under tbe instructions which tbe court bas endeavored to give you.” Exception.

It must be conceded tbat tbe opening and concluding sentences of tbe instructions on the issue of damages were infelicitous, and but for tbe intervening correct application of tbe rule, tbe decisions in Mooney v. Mull, 216 N.C. 410, 5 S.E. 2d 122, and Brewington v. Loughran, 183 N.C. 558, 112 S.E. 257, would probably be controlling. Construing tbe charge contextually, however, or in tbe same connected way in which it was given to tbe jury, i.e., as a whole, tbe conclusion is reached tbat no reversible error bas been shown. The interpretation finds support in tbe last sentence where tbe discretion of tbe jury is confined to “tbe bounds and under tbe instructions” theretofore given. Tbe court bad previously told tbe jury tbat it was not within their province “to take money from one person and give it to another. It is only within tbe province of a jury to award to another person such damages, if any, as tbe law sane-tions and provides.” Similar interrelated references in the charge were upheld in S. v. Creech, 229 N.C. 662, 51 S.E. 2d 348.

Again, exception is taken to the use by the court of imaginary scales in defining what is meant by “the greater weight of the evidence.” The illustrative use follows: “You take the evidence as you sift it out and find out, discover the truth and what you will accept as being the truth in the case for the plaintiffs and put that in one pan on this imaginary scale. You take the testimony as offered here in this case of the defendants, both from cross-examination of the witnesses and direct examination, and having taken that testimony which you consider as being the truth in the matter with reference to certain issues or matters, and place that into the scale of the defendant, and if then, having done so, when you come to decide on the issues of fact, if those pans are equally balanced and remain equally balanced, why then the plaintiffs, by reason of our law, have failed to satisfy you by the greater weight of the evidence and the plaintiffs’ contentions would not prevail.”

The appellants seem to think that this instruction confined the evidence to be placed on their side of the scales to “the testimony offered by them,” and excluded any testimony favorable to them from plaintiffs’ witnesses. The interpretation is regarded as too restrictive. The instruction includes all testimony, offered or elicited. We think the illustration will do, though as usual, figurative language, like rhetoric, invites scrutiny to make sure of its trueness. Clarity and precision are the goals to be sought in the court’s charge to the jury. Lewis v. Watson, 229 N.C. 20, 47 S.E. 2d 484. The rounded sentence or rhythmic phrase must often be sacrificed to the accurate expression, for in the law the exact word at the right time and in the right place is the “word fitly spoken” (Prov. 25 :11). Of course, the polished phrase is always in order.

As a dernier ressort, the defendants stressfully contend that on the issue of liability, the court failed to “state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon,” as required by Gr.S. 1-180. Yarn Co. v. Mauney, 228 N.C. 99, 44 S.E. 2d 601. Again, considering the charge contextually, and not disjointedly, we think it sufficiently covers the case to withstand the challenge of inadequacy, and this without any expression of opinion on the facts. Wells v. Burton Lines, 228 N.C. 422, 45 S.E. 2d 569.

Viewing the record in its entirety, the conclusion is reached that the verdicts and judgments should be upheld.

No error.