Hobbs v. Goodman , 240 N.C. 192 ( 1954 )

81 S.E.2d 413 (1954) 240 N.C. 192

HOBBS
v.
GOODMAN et al.

No. 527.

Supreme Court of North Carolina.

April 28, 1954.

McDougle, Ervin, Horack & Snepp, Robinson & Jones, Charlotte, for defendants Goodman, appellants.

Pierce & Blakeney and R. E. Wardlow, Guy T. Carswell, Charlotte, for defendants trustees, appellees.

BARNHILL, Chief Justice.

The plaintiff seeks to recover compensation for personal injuries she sustained when an advertising sign attached to the building by the Goodmans while they were in exclusive control thereof fell and struck her as she was passing in front of the building. The defendants Goodman seek to recover over against the defendants trustees on the allegation that the plaintiff was injured when a part of the metal cover of an awning attached to the building prior to their (the Goodmans') first occupancy of the building, fell and struck plaintiff. Thus plaintiff seeks to recover on one cause of action while defendants Goodman seek contribution from, or to recover over in full against, the trustees upon an entirely different state of facts. Under these circumstances the provisions of G.S. § 1-240 are not available to the original defendants.

The purpose of the Act, G.S. § 1-240, is to permit a defendant who has been sued in tort to bring into the action, for the purpose of enforcing contribution, a joint tort-feasor whom the plaintiff could have joined as party defendant in the first instance. Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335, 156 A.L.R. 922.

The cause of action as stated in the complaint is the subject matter of the controversy. Defendants are not permitted to litigate in plaintiff's action differences which are not directly related thereto. To entitle the original defendant in a tort action to have some third party made an additional party defendant under G.S. § 1-240 to enforce contribution, it must be made to appear from the facts alleged in the cross action that the defendant and such third person are tort feasors in respect of the subject of controversy, jointly liable to the plaintiff for the particular wrong alleged in the complaint. The facts must be such that the plaintiff, had he desired so to do, could have joined such third party as defendant in the action. Wilson v. Massagee, supra; Evans v. Johnson, 225 N.C. 238, 34 S.E.2d 73; Tarkington v. Rock Hill Printing & Finishing Co., 230 N.C. 354, 53 S.E.2d 369, 11 A.L.R. 2d 221.

The plaintiff alleges she was injured when an advertising sign erected by the Goodmans fell and struck her as she walked along the sidewalk in front of the building occupied by them as tenants. This sign was erected by the Goodmans for their own use and benefit while they were in exclusive possession of the premises. Negligence in the erection and maintenance of this sign is the heart of her claim to compensation for personal injuries.

If the sign was negligently erected or maintained, that negligence was the negligence of the Goodmans alone. In no sense were the trustees joint tort-feasors in respect thereto. Garrett v. Garrett, 228 N.C. 530, 46 S.E.2d 302; Shaw v. Barnard, 229 N.C. 713, 51 S.E.2d 295. Indeed, the Goodmans do not so allege. They base their cross action on an entirely different state of facts which invoke the application of principles of law which have no relation to plaintiff's cause of action. It follows that the order sustaining the demurrer was well advised.

From what has been said heretofore, it clearly appears that the doctrine of primary and secondary liability has no application. Even if we concede that the doctrine applies, the Goodmans are the ones who were actively negligent and created the situation which caused the plaintiff's injuries.

But the original defendants suggest that plaintiff may now amend her complaint and allege that it was the top or cover of the awning, and not the sign, that fell and injured her. They therefore urge us to render decision on this appeal as though she had so alleged in the first instance. But this we may not do. Skipper v. Yow, 240 N. C. 102, 81 S.E.2d 200. In the first place we must assume that plaintiff has alleged in good faith the facts as she understands them to be. In the second place what we might now say, in anticipation of an amendment, respecting the interesting questions discussed in the briefs would be dicta in which we should not—but sometimes do—indulge.

The judgment entered in the court below is

Affirmed.