Bass v. Ingold ( 1950 )

60 S.E.2d 114 (1950) 232 N.C. 295

BASS
v.
INGOLD et al.

No. 742.

Supreme Court of North Carolina.

June 9, 1950.

A. J. Fletcher, F. T. Dupree, Jr., Raleigh, for defendant Dixon, appellant.

Fuller, Reads, Umstead & Fuller, James L. Newsom, Durham, for defendants, appellees.

SEAWELL Justice.

The defendants, Ingold and Weaver sought to bring in the additional defendants for contribution as joint tort-feasors under G.S. § 1-240 and for no other purpose. The Westinghouse Electric Corporation is no longer in the picture. The "additional" defendant, Bryan A. Dixon demurred to the further answer and cross-action of the original defendants as it related to him for the reason that on the face of it, the defendants made the affirmative plea above set out in the statement of the case, to which we refer. The demurrer was overruled, partly, it appears in deference to allegations in plaintiff's pleading which His Honor assumed raised an issue of fact, but, the additional parties were not brought in at the instance of the plaintiff but solely on the motion of defendants and within the limits of that pleading the demurrer must stand or fall.

We think it clear that a person riding in a car driven by another person whose superior he is and over whom he has the control and direction in the operation of the car and presently exercising such control and direction is thereby barred from any action for injury proximately caused by the negligence of the driver, which, in law, is imputable to him, and therefore forms no basis for a cross-action bringing the driver in as a party-defendant on the theory of contribution as a joint tort-feasor. Evans v. Johnson, 225 N.C. 238, 34 S.E.2d 73.

It appears "from the record, however, that Bass, the plaintiff, and Dixon, were fellow employees of the Westinghouse Corporation, which was dismissed from the action on the ground that it was not amenable to the provisions of G.S. § 1-240, and could not be brought in for contribution as joint tort-'feasor. The appellant contends that under G.S. § 97-9 he is entitled to the same immunity.

The matter is fully discussed in Essick v. City of Lexington, N.C., 60 S.E.2d 106, and on principles there held applicable we are of the opinion that the order or judgment of the Superior Court was in error in retaining the appellant, Dixon, as a party defendant. The judgment is reversed and appellant dismissed as party to the action.

Reversed.