Etheridge v. Carolina Power & Light Company , 249 N.C. 367 ( 1959 )

106 S.E.2d 560 (1959) 249 N.C. 367

Doris ETHERIDGE, Administratrix of the Estate of Charlie Horace Bordeaux,
v.
CAROLINA POWER & LIGHT COMPANY (Defendant) and
Swift & Company (Additional Defendant).

No. 593.

Supreme Court of North Carolina.

January 14, 1959.

James & James, Wilmington, for plaintiff appellee.

Proctor & Proctor, Whiteville, and A. Y. Arledge, Raleigh, for defendant appellant, Carolina Power & Light Co.

Royce S. McClelland, Wilmington, for additional defendant, appellee, Swift & Co.

RODMAN, Justice.

When an injured party elects to sue some but not all of the tort-feasors responsible for his injuries, those sued have a right to bring the other wrongdoers in for contribution. G.S. § 1-240. The original defendant then becomes as to the tort-feasors not sued a plaintiff. Norris v. Johnson, 246 N.C. 179, 97 S.E.2d 773; Wrenn v. Graham, 236 N.C. 719, 74 S.E.2d 232. The pleading filed by the original defendant must state facts which are sufficient to show that the original defendant is entitled to contribution from the additional defendant. If the facts alleged do not suffice to establish a right to contribution, the party or parties brought in as additional defendants are unnecessary parties and may on motion have the allegations stricken and the action dismissed as to them. Hayes v. City of Wilmington, 239 N.C. 238, 79 S.E.2d 792; Id., 243 N.C. 525, 91 S.E.2d 673. The motion is in effect a demurrer for failure to state a cause of action. G.S. § 1-127.

Rule 4(a) of this Court has no application when the order striking a portion of the pleading is in effect a demurrer denying the pleader a right to recover for failure to state facts sufficient to constitute a cause of action. Such an order comes within the provisions of G.S. § 1-277 and the party adversely affected may appeal.

To entitle it to contribution, Power Company alleged in brief these facts: It generates and distributes electricity. It has for many years sold current to Swift at a potential of 11,000 volts. Swift maintained on its premises its own substation and distribution system, reducing the voltage as it desired by means of its own transformers. Swift agreed when it contracted with Construction Company to furnish the latter with such electricity as might be needed in the erection of the tower and other buildings. Pursuant to the contract between Swift and Construction Company the latter, as agent for Swift, requested the Power Company to erect the new transmission line with proper transformers for Swift and as a part of its system. Power Company built this line for Swift. It was constructed at places designated and built in accordance with directions given it by the agent of Swift. The mere fact that Construction Company was Bordeaux's employer and was also agent for Swift in contracting for the erection of the transmission line did not afford Swift immunity from its negligence.

The allegations are, we think, sufficient to support a claim for contribution and to withstand a demurrer. It follows that there was error in striking the allegations of the answer constituting a cause of action against Swift for contribution.

Plaintiff seeks no relief from Swift. Hence it is not interested in any defenses asserted by Power Company to defeat plaintiff's claims. The order made on Swift's motion to strike facts alleged by Power Company as a defense was likewise erroneous. To what extent the facts alleged would, if established, constitute valid defenses need not now be determined.

Power Company as a defense alleged Bordeaux was a qualified electric welder acquainted with the hazards of electric transmission lines. He knew the line in question was energized at 440 volts. He had been warned about the dangers inherent in the line in question. He helped build the tower, bringing it in close proximity to the transmission line. He ignored the warnings given him and continued to work in a place of known danger. He performed his work in a careless manner without regard for his own safety. This conduct is asserted to constitute negligence barring recovery.

Immediately following this plea of contributory negligence Power Company alleged:

"That if the plaintiff's intestate was not guilty of contributory negligence in respect to his alleged injury, suffering, and death, as hereinbefore alleged, nevertheless the plaintiff is barred from a recovery herein under the doctrines of Assumed Risk and of volenti non fit injuria, in that the plaintiff's intestate knew or should have known of the existence of said electric line and of the highly dangerous current which was, or was liable to be, thereon, and if the place where he was working was a dangerous place for him to do the work in which he was engaged, as the plaintiff alleges, which is denied, that he had full opportunity to know and did know and appreciate such dangers, and with such knowledge and appreciation of such alleged dangerous condition, and, not being under the force of compulsion so to do, he voluntarily went into and worked in said dangerous place and exposed himself to the dangers then and there existing and he thereby assumed all the risks of injury which confronted him, and the defendant hereby pleads that the aforesaid doctrines of Assumption of Risk and volenti non fit injuria in bar and defense of a recovery herein."

The court on motion of plaintiff struck the quoted section. Power Company excepted and appealed and also applied for certiorari which was allowed. We need not now determine whether this assignment of error is decided as a question incident to and presented by the appeal, as was done in Edwards v. Jenkins, 247 N.C. 565, 101 S.E.2d 410, or decided pursuant to the order allowing certiorari.

Notwithstanding the strenuousness with which counsel for the Power Company argue the question, we are of the opinion the order was properly entered. Parties are not permitted to recover nor may a recovery be defeated by a cognomen or phrase fashioned to indicate in a general way the character of the action or defense. The rights of litigants are determined by facts admitted or proven. Pleadings are the vehicles used to put an opponent on notice of decisive facts which pleader will undertake to prove.

Our statutes are specific in directing "a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition" when drafting a complaint, G.S. § 1-122; and "in ordinary and concise language, without repetition" when stating an affirmative defense, G.S. § 1-135.

The judgment is, as it relates to the motions made by

Swift & Company, reversed.

Plaintiff, affirmed.