Guthrie v. . Durham , 168 N.C. 573 ( 1915 )

HOKE J., dissenting; ALLEN, J., concurring in dissenting opinion. This is an appeal from the refusal of the court to grant the motion of the defendant to make A. E. Lloyd a party defendant.

The plaintiff, who was an infant 11 years of age at the time of the injury complained of, brings this action by his next friend against the city of Durham for damages caused by its alleged negligence in permitting a dangerous excavation, immediately adjoining one of its streets, to be insufficiently guarded and protected, alleging that this negligence resulted in injuries to the plaintiff. A. E. Lloyd, who was owner of the lot upon which the excavating was done, in excavating for the foundations for his building, desiring an entrance through the sidewalk to his basement, excavated under the width of the sidewalk for the whole extent of his lot. It appears from the answer that Lloyd erected a plank fence across the sidewalk and along the edge of the street to prevent those using the sidewalk from falling into the excavation. This fence was 4 1/2 or 5 feet high. On Sunday, 2 August, 1914, there was a heavy rainfall which caused the dirt sustaining this fence to give way. Those in charge of the work were engaged in making the fence more secure when the plaintiff rode up on his bicycle and leaned against the fence. When warned to leave, he did not do so, but leaned against the fence, which gave way, tumbling him and his bicycle into the excavation, and in falling his arm became entangled in the bicycle and was broken.

The city of Durham, the allegations set up in its answer, moved to have A. E. Lloyd made a party. Upon notification of said motion, Lloyd appeared and asked to be made a party, that he might make his defense, but the court declined the motion, and defendant excepted.

The making of new parties defendants where they are not necessary is a matter within the discretion of the trial judge, and his refusal is not reviewable. Aiken v. Mfg. Co., 141 N.C. 339. But in this (575) case, if there should be a recovery against the defendant the city of Durham, A. E. Lloyd would be liable to the city, and it could recover in an action against him. It is the policy of the law to determine a controversy in one action rather than several, when it can be done. Besides, A. E. Lloyd is entitled to a day in court, and it is but just that he should have an opportunity to defend the suit against the city in order to defeat a recovery, or to reduce the amount for which he must answer over, by setting up his defense in his own way and through his own counsel. The city has not the same interest in defeating the action, or in reducing the amount, if it can recover over against a solvent party. This has been fully discussed and settled in several cases.Dillon v. Raleigh, 124 N.C. 184; Brown v. Louisburg, 126 N.C. 701;Raleigh v. R. R., 129 N.C. 265; Gregg v. Wilmington, 155 N.C. 18.

The discussion in Gregg v. Wilmington, supra, is very full and elaborate, citing authorities from the Federal Supreme Court and several States as well as those from North Carolina. Walker, J., says: "The Code contemplates this method of trial to avoid circuity and multiplicity of actions."

It is true that there is no contribution between tort-feasors, and that ordinarily where there is a recovery against one joint tort-feasor sued alone, he cannot recover of the other tort-feasors. But there is an exception when, as in this case, there is evidence tending to show that Lloyd is primarily liable, if there was negligence, and the city secondarily so. In the Gregg case, supra, Walker, J., points out that the exceptions to the rule that there is no contribution among joint wrongdoers is subject to two exceptions: "(1) Where the party claiming indemnity has not been guilty of any fault, except technically or constructively, as where an innocent master is held to respond for the tort of his servant acting within the scope of his employment; or (2) where both parties have been in fault, but not in the same fault, towards the party injured, and the fault of the party from whom indemnity is claimed was the primary and efficient cause of the injury. Very familiar illustrations of the second class are found in cases of recovery against municipalities for obstructions to highways caused by private persons. The fault of the latter is the creation of the nuisance, that of the former the failure to remove it in the exercise of its duty to care for the safe condition of the public streets; the first was a positive tort and the efficient cause of the injury complained of, the latter the negative tort of neglect after notice express or implied," citing many cases.

The fact that the plaintiff could sue both the city of Durham and Lloyd does not determine that they are both liable in the same degree. It is true that the city gave Lloyd the permit to make the excavation and was charged with the duty of supervising his operations to prevent injury to the public, and if it neglected to do so, it is (576) liable to the plaintiff. But the primary liability may be upon Lloyd, there being evidence tending to show that his negligence, if any, was antecedent to that of the city if it was negligent in not giving efficient supervision.

Upon the facts set out in the answer the defendant, the city of Durham, was entitled to have Lloyd made a defendant, and he was a fortiori entitled to have his motion, to come in and defend the action, granted.

Reversed.