Kimsey Ex Rel. Kimsey v. Reaves ( 1955 )

89 S.E.2d 386 (1955) 242 N.C. 721

Donald William KIMSEY, by next friend, Betty Jane Kimsey,
v.
Carl E. REAVES and wife, Bertie G. Reaves, and Trady T. Johnston, Sr.

No. 238.

Supreme Court of North Carolina.

October 12, 1955.

Jones & Small, Charlotte, for defendant appellants.

Henry L. Strickland and Wm. H. Booe, Charlotte, for appellees.

BARNHILL, Chief Justice.

Ordinarily it is within the discretion of the court to allow or deny a motion to make a party who is not a necessary party to the proceeding a party plaintiff or defendant, and the order entered is not reviewable. Aiken v. Rhodiss Mfg. Co., 141 N.C. 339, 53 S.E. 867; Guthrie v. Durham, 168 N.C. 573, 84 S.E. 859.

"The question of primary and secondary liability is for the offending parties to adjust between themselves." Dillon v. City of Raleigh, 124 N.C. 184, 32 S.E. 548, 549; Bowman v. Greensboro, 190 N.C. 611, 130 S.E. 502. A defendant, unless the law provides to the contrary, is not permitted to clutter up the plaintiff's claim with an action by him against a third party in which the plaintiff has no interest.

The doctrine of primary and secondary liability applies when the negligence of one party is active and that of the other is passive. Wrights Clothing Store v. Ellis Stone & Co., 233 N.C. 126, 63 S.E.2d Davis v. Radford, 233 N.C. 283, 63 S.E.2d 822, 24 A.L.R.2d 906. Here the two automobiles collided while both were in motion, traveling upon a public highway. We cannot perceive how either motorist can successfully assert that his negligence was passive while the negligence of the other motorist was active. If both were negligent, necessarily the negligence was concurrent. But defendants Reaves studiously avoid alleging concurrent negligence and do not file their motion under the provisions of G.S. § 1-240. Furthermore, defendants Reaves, under their general denial, may offer evidence tending to show (1) that the collision was caused by the sole negligence of the Johnston boy, and (2) that their negligence, if any, was insulated by the negligence of the operator of the Johnston automobile without any plea of a cross action against Johnston.

It follows that we concur in the view of the court below that the order making defendant Johnston a party to this action was improvidently issued, and that his name and the alleged cross action against him should be stricken.

Affirmed.

WINBORNE and HIGGINS, JJ., took no part in the consideration or decision of this case.