Clark v. Pilot Freight Carriers, Inc. , 247 N.C. 705 ( 1958 )

102 S.E.2d 252 (1958) 247 N.C. 705

Cora D. CLARK, Administratrix of the Estate of Henry Clark, Deceased, Plaintiff Appellee,
v.
PILOT FREIGHT CARRIERS, Inc. and Leo W. Ford, Original Defendants, Appellants, and
Burlington Engineering Company, Inc., Additional Defendant Appellee.

No. 737.

Supreme Court of North Carolina.

February 26, 1958.

Sanders & Holt, Burlington, Long, Ridge, Harris & Walker, Graham, for plaintiff appellee.

Cooper, Latham & Cooper, Robert E. Long, Burlington, for original defendant appellants.

Sapp & Sapp, Greensboro, for additional defendant appellee.

DENNY, Justice.

The additional defendant filed a motion in this Court to dismiss the appeal of the original defendants on the ground that the appellants have failed to group and separately number the exceptions relied upon by them, as required by Rule 19, Section 3 of the Rules of Practice in the Supreme Court, 221 N.C. 554 et seq.

In considering whether or not the court below committed error in sustaining plaintiff's demurrer and in striking allegations in the pleadings, and in vacating an ex parte order making an additional party defendant, when such matters are brought before us pursuant to petition for writ of certiorari, as provided in Rule 4(a) of the Rules of Practice in the Supreme Court, 242 N.C. 766, G.S.1957 Cumulative Supplement, page 21, and exceptions are not set out as required by Rule 19, Section 3 of the Rules of Practice in the Supreme Court, supra, G.S.Appendix I, page 171, we will treat the record filed pursuant to the terms of the allowed writ as an exception to the order or orders which petitioner seeks to have reviewed. Consequently, we hold that nothing is presented for decision on the record before us except the question as to whether the pleadings and admitted facts on which the trial judge ruled support the orders entered, and whether or not any error of law appears on the face of the record. Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118; Surratt v. Chas. E. Lambeth Insurance Agency, 244 N.C. 121, 93 S.E.2d 72; Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223; Bond v. Bond, 235 N.C. 754, 71 S.E.2d 53. The motion to dismiss is denied.

The determinative question on this appeal is whether or not the court below committed error in allowing the motion of the additional defendant to strike Pilot's cross-action and to vacate the ex parte order making Burlington an additional party defendant. If the ruling on this motion is upheld, we do not understand that the original defendants seriously challenge the ruling on the plaintiff's motion to strike certain pleadings.

There being no allegation in the pleadings tending to show any contractual relationship between the plaintiff and the original defendants, the doctrine of assumption of risk is not available as a defense. Gilreath v. Silverman, 245 N.C. 51, 95 S.E.2d 107; Goode v. Barton, 238 N.C. 492, 78 S.E.2d 398; Broughton v. Standard Oil Co., 201 N.C. 282, 159 S.E. 321. Therefore, the demurrer to the plea of assumption of risk as a bar to plaintiff's right of recovery was properly sustained.

The appealing defendants admit that since Burlington and the plaintiff's intestate were subject to the provisions of the North Carolina Workmen's Compensation Act, Pilot is not entitled to have Burlington retained as an additional party defendant under the provisions of G.S. § 1-240 and the decisions of this Court. Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886; Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559, 75 S.E.2d 768; Johnson v. Catlett, 246 N.C. 341, 98 S.E.2d 458, and cited cases. They likewise admit that Pilot is not entitled to relief against Burlington under the doctrine of primary and secondary liability. Hannah v. House, N.C., 101 S.E.2d 357; Wright's Clothing Store v. Ellis Stone & Co., 233 N.C. 126, 63 S.E.2d 118.

The appellants apparently are relying solely on their contention that, since the character of the shipment by Burlington was such that the rules of the Interstate Commerce Commission required Burlington to load the unit of machinery on the tractor-trailer of Pilot, the common carrier, there is an implied obligation on the part of Burlington to indemnify Pilot against any damages growing out of the injury and death of plaintiff's intestate, an employee of Burlington, which occurred while the shipment of Burlington was being loaded on Pilot's tractor-trailer or immediately after the work of loading was completed.

We do not construe the pleadings to allege any contract between Burlington and Pilot other than an agreement that shipments by Burlington would be accepted by Pilot, subject to classifications and tariffs in effect at the time Burlington shipments were tendered to Pilot.

Conceding, but not deciding, that an implied contract existed as alleged by Pilot, it was discretionary with the trial judge as to whether or not Pilot would be permitted to litigate its claim under the implied contract of indemnity against Burlington in this action. Burlington is certainly not a necessary party to a complete determination of the matters alleged in the complaint as between the plaintiff and the original defendants. Moreover, a carrier operating under a license, or franchise, granted by public authority and subject to certain obligations or liabilities imposed by such authority, is responsible for the operation of its trucks pursuant to such franchise insofar as third parties are concerned. 57 C.J.S. Master and Servant § 591, page 368; Newsome v. Surratt, 237 N.C. 297, 74 S.E.2d 732; Jocie Motor Lines v. Johnson, 231 N.C. 367, 57 S.E.2d 388; Brown v. Bottoms Truck Lines, 227 N.C. 299, 42 S.E.2d 71.

In the case of Gaither Corp. v. Skinner, 238 N.C. 254, 77 S.E.2d 659, 661, the owner of a building sued his contractor for breach of contract on the ground that the roof of the building was defective and leaked. Defendant contractor sought to have his subcontractor joined as an additional party defendant upon allegations to the effect that if the roof were defective, the subcontractor had failed to erect it in accord with the specifications and that in such event the sub-contractor was responsible to the plaintiff and the contractor, with prayer that if the plaintiff should recover damages against him that he should be permitted to recover judgment over against his sub-contractor. This Court upheld the ruling of the court below in denying the motion to make the sub-contractor an additional party defendant. In speaking for the Court, Devin, C. J., said: "The plaintiff has elected to pursue his action against the contractor with whom he contracted in order to recover damages for an alleged breach of that contract, and plaintiff should be permitted to do so without having contested litigation between the contractor and his sub-contractor projected into the plaintiff's lawsuit. Montgomery v. Blades, 217 N.C. 654, 9 S.E.2d 397."

It is within the discretion of a trial judge to allow or deny a motion to make a party who is not a necessary party to an action a party plaintiff or defendant and the order entered is not reviewable. Hannah v. House, supra; Kimsey v. Reaves, 242 N.C. 721, 89 S.E.2d 386; Gaither Corp. v. Skinner, supra; Guthrie v. City of Durham, 168 N.C. 573, 84 S.E. 859; Aiken v. Rhodiss Manufacturing Co., 141 N.C.339, 53 S.E. 867.

It is said in Montgomery v. Blades, 217 N.C. 654, 9 S.E.2d 397, 398, "A cause of action arising between defendants not founded upon or necessarily connected with the subject matter and purpose of the plaintiff's action should not be engrafted upon the action which plaintiff has instituted. * * * Section 602 of the Consolidated Statutes (now G.S. § 1-222) provides that ``judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may determine the ultimate rights of the parties on each side, as between themselves.' This permits the determination of the questions of primary and secondary liability between joint tort-feasors, but it may not be understood to authorize the consideration of cross-actions between defendants as to matters not connected with the subject of the plaintiff's action." The plaintiff in this action is not a party to or bound by any contract of indemnity that may exist between Pilot and Burlington.

Ordinarily, a defendant should not be permitted to bring in an additional party defendant whose presence is not necessary to a complete determination of the cause of action alleged by the plaintiff and compel the plaintiff to stand by while the defendants litigate their differences in his suit. Schnepp v. Richardson, 222 N.C. 228, 22 S.E.2d 555; Wrenn v. Graham, 236 N.C. 719, 74 S.E.2d 232; Hobbs v. Goodman, 240 N.C. 192, 81 S.E.2d 413.

The rulings of the court below will be upheld.

Affirmed.