Wall Funeral Home, Inc. v. Stafford , 3 N.C. App. 578 ( 1969 )

165 S.E.2d 532 (1969) 3 N.C. App. 578

WALL FUNERAL HOME, INC., Original Plaintiff, and
Continental Insurance Company, Additional Plaintiff,
v.
W. L. STAFFORD, Jr., Guardian ad Litem for Jimmie Lee Holmes and Bertha Smith, Original Defendants, and
John Doe, Additional Defendant.

No. 6921SC31.

Court of Appeals of North Carolina.

February 5, 1969.

Hudson, Petree, Stockton, Stockton & Robinson, by J. Robert Elster and John M. Harrington, Winston-Salem, for original plaintiff appellee.

Womble, Carlyle, Sandridge & Rice, by Jimmy H. Barnhill, Winston-Salem, for original defendant appellants.

PARKER, Judge.

Appellant's sole assignment of error is addressed to the court's allowing plaintiff's motion to strike his cross action. Appellant, an original defendant in this tort action, has attempted to set up a cross action for contribution under G.S. § 1-240. (Since this action was commenced prior to 1 January 1968, G.S. § 1B-8 is not applicable; see §§ 3½ and 4, Ch. 847 of the 1967 Session Laws.) By this means he seeks to bring in as an additional defendant a person alleged by him to be a joint tort-feasor but whose identity he does not yet know, designating such person as "John Doe." Appellant relies on G.S. § 1-166, which provides that when the plaintiff is ignorant of the name of a defendant, he may designate such defendant by any name and later amend his pleadings to insert the true name when it is discovered. However, G.S. § 1-166 does not, at least by express language, apply to authorize a defendant to cross-plead against an unknown additional defendant, and G.S. § 1-240, which is applicable to this case, contains no provision permitting a cross action for contribution against an additional defendant designated only by a fictitious name. With regard to seeking contribution prior to judgment, G.S. § 1-240 provides that the original defendant "may, upon motion, have the other joint tort-feasors made parties defendant," and there is no reason to suppose that the Legislature intended in such cases that the additional parties defendant might be fictitious or anything other than real defendants.

The obvious purpose of G.S. § 1-166 is to provide a plaintiff a means to toll the statute of limitations when he does not yet know the proper designation of the defendant. No comparable necessity exists when a defendant desires to pursue a cross action for contribution against an unknown joint tort-feasor under G.S. § 1-240, since the statute does not begin to run on the claim for contribution until judgment has been recovered against the first tort-feasor. Godfrey v. Tidewater Power Co., 223 N.C. 647, 27 S.E.2d 736, 149 A.L.R. 1183. (See, G.S. § 1B-3(c) for the time within which an action to enforce contribution must be commenced in cases controlled by G.S., Chap. 1B.)

While neither the express language nor the purpose of G.S. § 1-166 would seem to make it applicable to the situation here presented, even if we stretch the language of that statute sufficiently to make it apply to this case, nevertheless, the order here appealed from should be affirmed. Appellant has failed to show he has been in any way prejudiced. In any event he could not have recovered contribution from "John Doe" until he learned John's true identity and served process upon him in person; nor was he entitled to delay trial of the action while he continued to search for the real "John Doe;" and even after entry of the order striking his cross action, if prior to trial he should be so fortunate as to find the real "John Doe," he may at that time still move to have him made an additional party defendant.

The burden is on appellant not only to show error, but that the alleged error was prejudicial and amounted to the denial of some substantial right. 1 Strong, N.C. Index 2d, Appeal and Error, § 46, p. 190.

Affirmed.

MALLARD, C. J., and BRITT, J., concur.