Wright's Clothing Store, Inc. v. Ellis Stone & Co.

63 S.E.2d 118, 233 N.C. 126, 1951 N.C. LEXIS 547

• Court: Supreme Court of North Carolina
• Decided: February 2, 1951
• Docket: 674
• Status: Published

Opinion

JohnsoN, J.

Tbe question for decision here is: Has Ellis Stone pleaded itself beyond tbe permissive bounds of tbe rule which permits tbe adjustment in one action of primary and secondary liability between joint tort-feasors? We think not.

Our decisions adhere to tbe rule that where two parties are jointly liable in damages for negligence, one of them for tbe reason that be is “only passively negligent, but is exposed to liability through tbe positive acts and actual negligence of tbe other, tbe parties are not in equal fault as to each other, though both are equally liable to tbe injured person. . . . Tbe further general principle is announced, however, in many cases, that where one does tbe act which produces tbe injury, and tbe other does not join in tbe act, but is thereby exposed to liability and suffers damage, tbe latter may recover against tbe principal delinquent, and tbe law will inquire into tbe real delinquency, and place tbe ultimate liability upon him whose fault was tbe primary cause of tbe injury.” Johnson v. Asheville, 196 N.C. 550; 146 S.E. 229; Bowman v. Greensboro, 190 N.C. 611, 130 S.E. 502; Guthrie v. Durham, 168 N.C. 513, 84 S.E. 859; Gregg v. Wilmington, 155 N.C. 18, 70 S.E. 1070.

Strictly speaking, this principle springs from equity and is an exception to tbe general rule that there can be no indemnity or contribution between joint tort-feasors. Taylor v. Construction Company, 195 N.C. 30, 141 S.E. 492.

The rule we are dealing with here operates in this jurisdiction quite apart from and independent of tbe 1929 statute permitting contribution between joint tort-feasors, Chapter 68, Public Laws of 1929, now incor porated in G.S. 1-240. Mclntosb, North Carolina Practice and Procedure, p. 245. Moreover, a defendant secondarily liable, when sued alone, may have the person primarily liable brought in to respond to the original defendant’s cross-action. Bowman v. Greensboro, supra; Guthrie v. Durham, supra; 39 Am. Jur., Parties, Section 91, p. 962. See also 25 N.C.L., p. 3.

The entry of judgment fixing primary and second liability as between joint tort-feasors finds statutory sanction under G.S. 1-222.

A cross-action.by a defendant against a codefendant or third party must be germane to the claim alleged by the plaintiff, i.e., the cross-action must be in reference to the plaintiff’s claim and based upon an adjustment of that claim. Bowman v. Greensboro, supra.

Independent and unrelated causes of action cannot be litigated by cross-action. Horton v. Perry, 229 N.C. 319, 49 S.E. 2d 734; Schnepp v. Richardson, 222 N.C. 228, 22 S.E. 2d 555; Montgomery v. Blades, 217 N.C. 654, 9 S.E. 2d 397.

The challenged portions of the cross complaint appear to be relevant and germane to the main action. They inject into the case no new or independent cause of action. Nor should the cross complaint, if properly interpreted in connection with the admission of evidence in the trial below, extend the scope of defendant-liability as fixed by the plaintiff’s complaint. Parker v. Duke University, 230 N.C. 656, 55 S.E. 2d 189; Hill v. Stansbury, 221 N.C. 339, 20 S.E. 2d 308; Pemberton v. Greensboro, 205 N.C. 599, 172 S.E. 196.

We refrain from discussing the principles of law, referred to in the briefs, dealing with the subject of third party beneficiaries and other phases of substantive law, including the rules governing the liability of an independent contractor in respect to an obligation to perform another person’s nondelegable duty. In the trial of the case below, the perti-nency of these principles of law, in their many refinements, may vary, depending upon the manner in which the case is developed and made to unfold. Hence, the fundamental soundness of the rule that it is not “the province of an appeal in such cases to have this Court chart the course of the trial in advance of the hearing.” Terry v. Coal Co., 231 N.C. 103, 55 S.E. 2d 926. See, however, these authorities: Gorrell v. Water Supply Co., 124 N.C. 328, 32 S.E. 720; Annotation: 38 A.L.R., 403 (545). Davis v. Summerfield, 133 N.C. 325, 45 S.E. 654; S. H. Kress Co. v. Reaves, 85 F. 2d 915; 1 Am. Jur. Adjoining Landowners, Sections 36 and 37, pp. 526 and 527; 27 Am. Jur., Independent Contractors, Sec. 52, p. 530; Annotations: 23 A.L.R., 984 (pp. 985, 1005, 1038); 29 A.L.R. 736; 38 A.L.R. 566 (579); Harrison v. Transit Co., 192 N.C. 545, 135 S.E. 460.

Affirmed.