Nelson v. Carroll ex rel. Carrol , 3 N.C. App. 26 ( 1968 )

BeocK, J.

The determinative question upon this appeal is whether Bobby Linn Morton has alleged a cause of action for contribution against Minor Love. It should be noted at the outset that this action was instituted and all motions for additional parties were made before 1 January 1968, the effective date upon which G.S. 1-240 was repealed by Session Laws 1967, c. 847, s. 2. Also the pleadings by Bobby Linn Morton specify that he seeks contribution from Minor Love under G.S. 1-240. Therefore, decision in this case is governed by the provisions of G.S. 1-240 and the interpretations placed thereon by our Supreme Court.

A defendant may not invoke the statutory right of contribution under G.S. 1-240 against an additional defendant in a tort action unless both parties are liable as joint-tortfeasors to the plaintiff in the action. Hayes v. Wilmington, 243 N.C. 525, 91 S.E. 2d 673. “To constitute two or more persons joint tort-feasors the negligent or wrongful act of the one must be so united in time and circumstance with the negligent or tortious act of the other that the two acts in fact constitute but one transaction. While neither concert of action nor unity of purpose is required, there must be concurrence in point of time and place. The parties must either act together in committing the wrong, or their acts, if independent of each other, must unite in causing a single injury.” Shaw v. Barnard, 229 N.C. 713, 51 S.E. 2d 295. “In order to show joint tortfeasorship, it is necessary that the facts alleged in the cross complaint be sufficient to make the third party liable to the plaintiff along with the cross-complaining defendant in the event of a recovery by the plaintiff against him.” Hayes v. Wilmington, supra. “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.” Hobbs v. Goodman, 240 N.C. 192, 81 S.E. 2d 413.

The negligence as alleged against Minor Love by Bobby Linn Morton consists entirely of negligence in the inspection and sale of the Morton car with defective brakes. None of the allegations of negligence against Morton charge an operation of the vehicle with defective brakes; it is Morton himself who first raises any question about brakes and he asserts a sudden, unexpected and unforeseeable brake failure. If this theory were determined in his favor by the jury, it would exonerate Morton insofar as any question of the brakes is concerned, and there would be no cause for Love to be a party for contribution. On the other hand, a finding by the jury that Morton was negligent would necessarily be upon one or more of the specifications of negligence alleged against Morton (i.e. following too closely, failing to keep a proper lookout, or failing to keep his car under proper control), and there would be no cause for Love to be a party for contribution to pay damages inflicted by Morton’s negligence in one of those respects.

To entitle a defendant to join an additional defendant under G.S. 1-240 for contribution as a joint tort-feasor facts must be alleged which, if established, would constitute concurring negligence in producing the injury complained of by the plaintiff. A mere allegation that the negligence of the additional defendant concurred with that of the original defendant is no more than a conclusion.

We agree with the trial judge that the demurrers of Love should be sustained. This disposition renders unnecessary a discussion of the other arguments advanced by the parties in their briefs and oral arguments.

Affirmed.

BRItt and Parker, JJ., concur.