Hayes v. City of Wilmington , 239 N.C. 238 ( 1954 )

79 S.E.2d 792 (1954) 239 N.C. 238

HAYES
v.
CITY OF WILMINGTON et al.

No. 593.

Supreme Court of North Carolina.

January 15, 1954.

McClelland & Burney, R. M. Kermon, Wilmington, and McLean & Stacy, Lumberton for defendant appellant S. E. Cooper.

Hogue & Hogue, Wilmington, Ernest S. DeLaney, Jr., and A. Y. Arledge, Raleigh, for Carolina Power & Light Co. and Tide Water Power Co., appellees.

BARNHILL, Justice.

Defendant Cooper was entitled, if at all, to have the additional defendants made parties defendant under the statute which permits contribution between joint tortfeasors, G.S. § 1-240.

At common law no right of action for contribution existed between or among joint tort-feasors. The question could not be raised either by independent suit, after judgment had been rendered against one of the joint tort-feasors, or in the original action by the party injured against one of them. The right is purely statutory, Hoft v. Mohn, 215 N.C. 397, 2 S.E.2d 23, Lineberger v. City of Gastonia, 196 N.C. 445, 146 S.E. 79, and must be enforced in accord with the provisions of the statute, G.S. § 1-240. Tarkington v. Rock Hill Printing & Finishing Co., 230 N.C. 354, 53 S.E.2d 269, 11 A.L.R.2d 221; Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559, 75 S.E. 2d 768; Godfrey v. Tidewater Power Co., 223 N.C. 647, 27 S.E.2d 736, 149 A.L.R. 1183.

When a person has been injured through the concurring negligence of two or more persons, he may sue one or all the joint tort-feasors at his option. Watts v. Lefler, 194 N.C. 671, 140 S.E. 435; Charnock v. Taylor, 223 N.C. 360, 26 S.E.2d 911, 148 A.L.R. 1126. Insofar as he is concerned, the others are not necessary parties and he may not be compelled to bring them in. Charnock v. Taylor, supra. They may, however, be brought in by the original defendant on a cross-complaint in which he alleges joint tort-feasorship and his right to contribution in the event plaintiff recovers judgment against him. G.S. § 1-240; Mangum v. Southern Ry. Co. 210 N.C. 134, 185 S.E. 644; Freeman v. Thompson, 216 N.C. 484, 5 S.E.2d 434; Lackey v. Southern Ry. Co., 219 N.C. 195, 13 S.E.2d 234; Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335, 156 A.L.R. 922.

Therefore, to retain the additional defendants as parties to the pending action, it must be made to appear that Cooper has alleged a cause of action against them for contribution. Allegations of a cause of action which would entitle the plaintiff to recover will not suffice. Bost v. Metcalfe, 219 N.C. 607, 14 S.E.2d 648; Freeman v. Thompson, supra; Charnock v. Taylor, supra. The original defendant has no cause of action for contribution unless the facts alleged by him in his cross-action are sufficient to make both of them liable to the plaintiff as joint tort-feasors. Bost v. Metcalfe, supra. "This is necessarily so for the very simple reason that one party can not invoke either of these rights (contribution or indemnity) against another party unless both of them are liable to the same person as joint tort-feasors." Hunsucker v. High Point Bending & Chair Co., supra [237 N.C. 559, 75 S.E.2d 776].

The allegations of negligence contained in the cross-action are summarized in the statement of facts. In short they are: (1) The installation of the gas pipes too near the surface of the street; (2) a failure to remove them or lower them to a proper depth after notice that excavation work on the street was contemplated; and (3) improper installation at the meter. Nowhere is it alleged that the negligence of the power company concurred with the negligence of Cooper in causing the death of the intestates. Instead, he alleges that the negligence of the power company was the sole proximate cause of their injury and death. He does not pray for contribution. He makes no reference to the explosion or the resulting death of plaintiff's intestates or to his acts in relation thereto.

If we concede that Cooper has sufficiently alleged negligence on the part of the power company and that plaintiff will prove the acts of negligence he alleges against Cooper (which Cooper does not even conditionally concede in his cross-complaint), it is made to appear that the acts of Cooper were the acts of an "outside agency or responsible third person" which completely insulated the negligence, if any, of the power company. Riggs v. Akers Motor Lines, 233 N.C. 160, 63 S.E.2d 197; Smith v. Sink, 211 N.C. 725, 192 S.E. 108; McLaney v. Anchor Motor Freight, Inc., 236 N.C. 714, 74 S.E.2d 36, and cases cited; Garner v. Pittman, 237 N. C. 328, 75 S.E.2d 111.

The negligence, if any, of the power company was passive; that of defendant was active. Without the negligence of Cooper, the negligence of the power company would have caused no harm. The intervening acts of Cooper did not merely operate as a condition on or through which the negligence of the power company operated to produce the injury and deaths of plaintiff's intestates, or merely accelerate or divert the negligence of the power company. It broke the line of causation, Riggs v. Akers Motor Lines, supra, so that it cannot be said that the power company could have reasonably foreseen the negligence of Cooper or that the two are joint tort-feasors.

Moreover, the acts of negligence of the power company alleged by Cooper, when related to the negligence alleged by plaintiff, at least invokes the doctrine of primary and secondary liability, Cooper being the one primarily liable. And it is axiomatic that one who is primarily liable cannot recover over against one who is secondarily liable. On insulated negligence see Shaw v. Barnard, 229 N.C. 713, 51 S.E.2d 295; Murray v. Atlantic Coast Line R. Co., 218 N.C. 392, 11 S.E.2d 326; Warner v. Lazarus, 229 N.C. 27, 47 S.E.2d 496; Bost v. Metcalfe, 219 N.C. 607, 14 S.E.2d 648; Peoples v. Fulk, 220 N.C. 635, 18 S.E.2d 147; Beaver v. Town of China Grove, 222 N.C. 234, 22 S.E.2d 434; and on primary and secondary liability see Bost v. Metcalfe, supra; Wright's Clothing Store v. Ellis Stone & Co., 233 N.C. 126, 63 S.E.2d 118, and Westchester Lighting Co. v. Westchester County Small Estates Corp., 278 N.Y. 175, 15 N.E.2d 567.

Cooper seeks to avail himself of the provisions of G.S. § 1-240. In so doing, he cannot rely upon any liability of the power company to plaintiff or borrow from the plaintiff or improve his legal status by leaning upon his (plaintiff's) cause of action. He must allege facts which, if proven, render the power company liable to him in the event plaintiff recovers on his causes of action. This he has failed to do. Charnock v. Taylor, supra; Canestrino v. Powell, 231 N.C. 190, 56 S.E.2d 566.

It follows that Cooper's cross-action fails to state a cause of action for contribution.

In the absence of a cross-action against a third party, made defendant on motion of the original defendant, in which a cause of action for contribution is sufficiently alleged, the additional party is an unnecessary party to the action and may, on motion, have his name stricken from the pleadings.

When no cause of action is stated against a defendant, either in the complaint or in a cross-action pleaded by another defendant, he is an unnecessary party and the inclusion of his name is mere surplusage. Sullivan v. Field, 118 N.C. 358, 24 S.E. 735.

A proper remedy is by motion to strike. Winders v. Southerland, 174 N.C. 235, 93 S.E. 726; Citizens Bank of Marshall v. Gahagan, 210 N.C. 464, 187 S.E. 580; Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761; Worth v. Knickerbocker Trust Co., 152 N.C. 242, 67 S.E. 590; Fleming v. Carolina Power & Light Co., 229 N.C. 397, 50 S.E.2d 45.

"The demurrer was properly overruled. At the most, they would have been merely unnecessary parties * * *. Such party has his remedy by motion to strike out his name." Winders v. Southerland, supra.

We do not mean to say, however, that where there is an unsuccessful attempt, either by the plaintiff or a defendant, to state a cause of action against an additional party defendant, a demurrer will not lie.

The contention of the defendant Cooper that the hearing before Grady, E. J., constituted a review by one Superior Court Judge of the order or judgment of another Superior Court Judge and that, in effect, Grady, E. J., by his judgment, reversed the order of Carr, J., making appellees additional parties is untenable. The additional defendants were made parties without notice and without a hearing, and they were entitled to their day in court.

Ordinarily one Superior Court Judge may not review the judgment of another Superior Court Judge. Davis v. Federal Land Bank, 217 N.C. 145, 7 S.E. 2d 373; Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377; Newton & Co. v. Wilson Furniture Manufacturing Co., 206 N.C. 533, 174 S.E. 449; Fleming v. Carolina Power & Light Co., supra. This rule, however, does not apply to orders making additional parties and other orders entered without notice or hearing. The rule does not and cannot abrogate the rights guaranteed by the due process clause of the Constitution.

The judgment entered in the court below is

Affirmed.