Hannah v. House , 247 N.C. 573 ( 1958 )

101 S.E.2d 357 (1958) 247 N.C. 573

James E. HANNAH
v.
George R. HOUSE, original defendant, and Howerton-Bryan Company, Inc. and Alton L. Temple, additional defendants.

No. 667.

Supreme Court of North Carolina.

January 10, 1958.

Reade, Fuller, Newsom & Graham, Durham, for plaintiff appellee.

Ruark, Young & Moore, Raleigh, and Bryant, Lipton, Strayhorn & Bryant, Durham, for original defendant appellant.

Spears & Spears, Wallace Ashley, Jr., Durham, for additional defendant Howerton-Bryan Co., Inc. appellee.

Lina Lee S. Stout, Durham, for additional defendant Alton L. Temple appellee.

DENNY, Justice.

At the threshold of this appeal we are confronted by these facts: The original defendant does not seek contribution pursuant to the provisions of G.S. § 1-240, Hobbs v. Goodman, 240 N.C. 192, 81 S.E.2d 413; or to establish primary and secondary liability, Wright's Clothing Store v. Ellis Stone & Co., 233 N.C. 126, 63 S.E.2d 118; but complete indemnification and exoneration from liability resulting from any judgment the plaintiff may obtain. In his answer, he denies any negligence on his part but alleges that the collision complained of was solely and proximately caused by the negligence of Alton L. Temple, employee of Howerton-Bryan Company, Inc., in driving the automobile owned by his employer, upon the occasion in question, while acting in the course and scope of his employment.

When a complete determination of a controversy cannot be made without the presence of other parties, the court must cause them to be brought in. G.S. § 1-73. "A person is a necessary party to an action when he is so vitally interested in the controversy involved in the action that a valid judgment cannot be rendered in the action completely and finally determining the controversy without his presence as a party. Colbert v. Collins, 227 N.C. 395, 42 S.E.2d 349; Jones v. Griggs, 219 N.C. 700, 14 S.E.2d 836; 39 Am.Jur., Parties, section 5; 67 C.J.S. Parties, § 1." Garrett v. Rose, 236 N.C. 299, 72 S.E.2d 843, 848.

However, as stated by Barnhill, C. J., in Kimsey v. Reaves, 242 N.C. 721, 89 S.E.2d 386, 387, "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. City of Durham, 168 N.C. 573, 84 S.E. 859." Certainly these additional parties are not necessary in order to determine the controversy involved in this action as between the plaintiff and the original defendant.

Moreover, the facts in this case present the identical question for decision that was presented in Kimsey v. Reaves, supra, and which was decided adverse to the appellant's contention on this appeal. In fact, counsel for the appellant conceded, in his oral argument before this Court, that unless the above decision is overruled, the appellant is not entitled to the relief he seeks.

The decision in the Kimsey case, in our opinion, should not be overruled. Hence, we affirm the ruling of the court below on the authority of and for the reasons stated in the opinion in that case.

Affirmed.