Sisk v. Perkins , 264 N.C. 43 ( 1965 )

140 S.E.2d 753 (1965) 264 N.C. 43

Novella SISK
v.
Lee Augustus PERKINS, Original Defendant, and
David William Sisk, Additional Defendant.

No. 199.

Supreme Court of North Carolina.

March 17, 1965.

Mullen, Holland & Harrell, Gastonia, for original defendant appellant.

Childers & Fowler, Whitener & Mitchem, Gastonia, for additional defendant appellee.

Verne E. Shive, Gastonia, for plaintiff appellee.

DENNY, Chief Justice.

The appellant herein assigns as error the ruling of the court below that the judgment heretofore entered in the action between Lee Augustus Perkins and David William Sisk is not res judicata in the instant case as between the original defendant and the additional defendant, as shown by the amendment to the answer of defendant Lee Augustus Perkins. "* * * (W)here A sues B alone as tort feasor, and B impleads C on cross-claim allegations of negligence for contribution or indemnification, a resulting judgment in respect of the cross-claim will operate as an estoppel in a subsequent action between B and C based upon allegations of negligence arising out of the same occurrence. The reverse order of actions, where in the former action B sued C, and in the subsequent action by A against C, C impleads B, yields the same result.

"The controlling principle here is that, as the court puts it: ``A judgment ordinarily settles nothing as to the relative rights and liabilities of the co-plaintiffs or co-defendants inter se, unless their hostile or conflicting claims were actually brought in issue, litigated and determined.'" McIntosh, North Carolina Practice and Procedure, Vol. 2, Cumulative Supplement, § 1734.5, page 47.

In Williams v. Hunter, 257 N.C. 754, 127 S.E.2d 546, Rodman, J., speaking for the Court, said: "The amendment alleges a prior adjudication of the rights of Barnes and Ferguson in a court having jurisdiction of the parties and the cause of action. If the plea be established, it defeats Ferguson's right to relitigate any question then in controversy. The negligence of each driver, the parties to that action, was necessarily in issue. The adjudication then made is binding on the parties. Hill v. Edwards, 255 N.C. 615, 122 S.E.2d 383; Bullard v. Berry Coal & Oil Co., 254 N.C. 756, 119 S.E.2d 910; Crain & Denbo, Inc. v. Harris & Harris Construction Co., 252 N.C. 836, 114 S.E.2d 809; Jenkins v. Fowler, 247 N.C. 111, 100 S.E.2d 234; Tarkington v. Rock Hill Printing & Finishing Co., 230 N.C. 354, 53 S.E.2d 269, 11 A.L.R. 2d 221; Allen v. Salley, 179 N.C. 147, 101 S.E. 545."

In Hill v. Edwards, 255 N.C. 615, 122 S.E.2d 383, this Court said: "``(W)here the initial action is instituted by the passenger in one vehicle against the driver of the other vehicle, in which the passenger's driver is joined for contribution, adjudication that the passenger's driver was not guilty of negligence constituting a proximate cause of the accident, is res judicata in a subsequent action between the drivers.' Strong's North Carolina Index, Volume III, Judgments, Section 29, page 45, citing Jenkins v. Fowler, 247 N.C. 111, 100 S.E.2d 234.

"It is equally true in such a factual situation, where the plaintiff recovers judgment against the original defendant, and the jury finds the additional defendant guilty of negligence and that such negligence concurred in jointly and proximately causing plaintiff's injuries and gives the original defendant a verdict for contribution pursuant to the provisions of GS § 1-240, such judgment is res judicata in a subsequent action between such drivers, based on the same facts litigated in the cross action in the former trial."

Since the additional party-defendant did not appeal, and there is no ruling in the court below on his motion to strike the amendment to the original defendant's answer, allowed 2 June 1964 and filed without verification, we are not called upon to rule on the merits of that motion. Even so, we call attention to what is stated in the case of Calaway v. Harris, 229 N.C. 117, 47 S.E.2d 796: "True it is, the statute provides that when one pleading in a court of record is verified, every subsequent pleading in the same proceeding, except a demurrer, ``must be verified also'. GS § 1-144. The requirement is one which may be waived, however, except in those cases where the form and substance of the verification is made an essential part of the pleading, as in an action for divorce in which a special form of affidavit is required. * * *

"Statutory provisions enacted for the benefit of a party litigant, as distinguished from those for the protection of the public, may be waived, expressly or by implication. * * * For instance, it is provided by GS § 1-111 that in actions for the recovery of the possession of real property the defendant, before he is permitted to plead, ``must execute and file' a defense bond, or in lieu thereof certificate and affidavit as provided by GS § 1-112. While this requirement is in practically the same language as that respecting the verification of subsequent pleadings where one is verified, it is subject to be waived, unless seasonably insisted upon by the plaintiff. * * *"

The above assignment of error is sustained, and as between the original defendant and the additional defendant there must be a new trial, and it is so ordered. Stansel v. McIntyre, 237 N.C. 148, 74 S.E.2d 345; Tarkington v. Rock Hill Printing & Finishing Co., 230 N.C. 354, 53 S.E.2d 269.

We find no error in the trial below that would warrant a new trial in plaintiff's action against the original defendant, and the judgment entered therein is affirmed.

New trial.