Wright's Clothing Store, Inc. v. Ellis Stone & Co. ( 1951 )

63 S.E.2d 118 (1951) 233 N.C. 126

WRIGHT'S CLOTHING STORE, Inc.
v.
ELLIS STONE & CO., Inc., et al.

No. 674.

Supreme Court of North Carolina.

February 2, 1951.

Brooks, McLendon, Brim & Holderness, G. Neil Daniels, and Smith, Wharton, Sapp & Moore, Greensboro, for defendant H. L. Coble Const. Co., appellant.

Frazier & Frazier, Greensboro, for plaintiff-appellee.

Huger S. King, Greensboro, for original defendant Ellis Stone & Co., Inc., appellee.

JOHNSON, Justice.

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

Our decisions adhere to the rule that where two parties are jointly liable in damages for negligence, one of them for the reason that he is "`only passively negligent, but is exposed to liability through the positive acts and actual negligence of the other, the parties are not in equal fault as to each other, though both are equally liable to the injured person.' * * * The further general principle is announced, however, in many cases, that where one does the act which produces the injury, and the other does not join in the act, but is thereby exposed to liability and suffers damage, the latter may recover against the principal delinquent, and the law will inquire into the real delinquency, and place the ultimate liability upon him whose fault was the primary cause of the injury." Johnson v. City of Asheville, 196 N.C. 550, 146 S.E. 229, 231; Bowman v. City of Greensboro, 190 N.C. 611, 130 S.E. 502; Guthrie v. City of Durham, 168 N.C. 573, 84 S.E. 859; Gregg v. City of Wilmington, 155 N.C. 18, 70 S.E. 1070.

Strictly speaking, this principle springs from equity and is an exception to the general rule that there can be no indemnity or contribution between joint tort-feasors. Taylor v. J. A. Jones 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 the 1929 statute permitting contribution between joint tort-feasors, Chapter 68, Public Laws of 1929, now incorporated in G.S. § 1-240. McIntosh, 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. City of Greensboro, supra; Guthrie v. City of 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 co-defendant 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. City of 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. City of 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 non-delegable duty. In the trial of the case below, the pertinency 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. Capital Ice & Coal Co., 231 N.C. 103, 55 S.E.2d 926, 927. See, however, these authorities: Gorrell v. Greensboro Water Supply Co., 124 N.C. 328, 32 S.E. 720, 46 L.R.A. 513; Annotation, 38 A.L.R. 403 (545). Davis v. Summerfield, 133 N.C. 325, 45 S.E. 654, 63 L.R.A. 492; S. H. Kress Co. v. Reaves, 4 Cir., 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. Southern Transit Co., 192 N. C. 545, 135 S.E. 460.

Affirmed.