Woods v. Turner , 261 N.C. 643 ( 1964 )

135 S.E.2d 664 (1964) 261 N.C. 643

Freda P. WOODS
v.
David Young TURNER.

No. 452.

Supreme Court of North Carolina.

April 15, 1964.

Smith, Leach, Anderson & Dorsett, by Willis Smith, Jr., Raleigh, for defendant Turner, appellant.

Young, Moore & Henderson, by J. Allen Adams, and Carter G. Mackie, Raleigh, for additional defendant William S. Woods, appellee.

HIGGINS, Justice.

The trial judge apparently sustained the demurrer to the defendant's cross action against William S. Woods for contribution upon the ground the defendant, in another further defense, had alleged that William S. Woods was driving the plaintiff's vehicle as her agent; and that his negligence was imputable to her and thus barred her right to recover. The plaintiff cites as authority Bass v. Ingold, 232 N.C. 295, 60 S.E.2d 114; and Evans v. Johnson, 225 N.C. 238, 34 S.E.2d 73.

The plaintiff and the court overlooked the fact the defendant's cross action against the additional defendant was alleged in the alternative. The cross action was asserted on condition that the further defenses of agency and ownership, etc., should be found against the original defendant. The rule approved in Bass and Evans does not apply in the present situation. The applicable rule is stated by Johnson, J., in Hayes v. City of Wilmington, 243 N.C. 525, 91 S.E.2d 673: "As to this contention, it is enough to say that a defendant who elects to plead a joint tortfeasor into his case is not required to surrender other defenses available to him. Nor may an additional party defendant who is brought in as a joint tortfeasor on cross complaint of an original defendant escape the plea against him by borrowing from contradictory allegations made by the cross-complaining defendant by way of defense against the plaintiff or by way of separate pleas over against other defendants. It is elemental that a defendant may set up and rely upon contradictory defenses." See also, Freeman v. Thompson, 216 N.C. 484, 5 S.E.2d 434.

The rule is stated by Bobbitt, J., in Jones v. Douglas Aircraft Co., 253 N.C. 482, 117 S.E.2d 496: "The fact that an original defendant denies negligence and otherwise asserts defenses in bar of the plaintiff's right to recover does not preclude him from alleging, conditionally or in the alternative, that if he were negligent a third party was also negligent, and that the negligence of such third party concurred with the negligence of the original defendant in causing the injury or death." The ultimate result is this: If the original defendant fails to make good on his defenses and is found to be liable, his conditionally asserted cross action for contribution is available to him.

The trial court committed error in sustaining the demurrer to the cross action merely upon the basis of contradictory allegations in the other defenses. After the evidence is in, the court will have opportunity to make appropriate rulings in the light of the evidence. The pleadings alone do not furnish enough light for that purpose.

Reversed.