Squires v. Sorahan

114 S.E.2d 277 (1960) 252 N.C. 589

Nancy D. SQUIRES
v.
Louis W. SORAHAN, Southern Auto Parts, Inc., City Motors of Durham, Inc., and Edward S. Massengill, d/b/a Durham Motor Sales.

No. 612.

Supreme Court of North Carolina.

May 18, 1960.

Smith, Moore, Smith, Schell & Hunter, by Richmond G. Bernhardt, Jr., Greensboro, for petitioners, Southern Auto Parts, Inc., and Textile Insurance Co., appellants.

Booth & Osteen, by Fred M. Upchurch, Greensboro, for respondents, City Motors of Durham, Inc., and Edward S. Massengill, D/B/A Durham Motor Sales, appellees.

HIGGINS, Justice.

The record discloses Nationwide Insurance Company, under its policy of $5,000, paid for its insured, City Motors of Durham, one-sixth of the plaintiff's judgment. The judgment (to the extent of that payment) was not assigned. Textile Insurance Company, under its policy of $25,000, paid for its insured, Southern Auto Parts, Inc., five-sixths of the plaintiff's judgment. The judgment, to the extent of that payment, was assigned without recourse to a trustee for Southern Auto Parts, Inc.

If contribution is made, obviously the payment goes to Textile Insurance Company. It was not a party to the tort. Its rights after payment are entirely contractual. They arise under the subrogation clause of the policy. Prior to 1929 contribution between joint tort-feasors could not be enforced. Provision for enforcement must be in accordance with G.S. § 1-240. Bargeon v. Seashore Transp. Co., 196 N.C. 776, 147 S.E. 299; Godfrey v. Tidewater Power Co., 223 N.C. 647, 27 S.E.2d 736, 149 A.L.R. 1183; Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335, 156 A. L.R. 922; Norris v. Johnson, 246 N.C. 179, 97 S.E.2d 773. "Joint tort-feasors are those who act together in committing a wrong, or whose acts, if independent of each other, unite in causing a single injury." White v. Keller, 242 N.C. 97, 86 S.E.2d 795, 797.

The insurance carrier of one joint tortfeasor cannot enforce contribution under G.S. § 1-240. Potter v. Frosty Morn Meats, Inc., 242 N.C. 67, 86 S.E.2d 780. "A most liberal construction of the statute will not permit the writing into it of the liability insurance carrier of tort-feasors when only tort-feasors and judgment debtors are mentioned therein." Gaffney v. Lumbermen's Mut. Casualty Co., 209 N.C. 515, 184 S.E. 46, 47; Lumbermen's Mut. Casualty Co. v. United States Fidelity & Guaranty Co., 211 N.C. 13, 188 S.E. 634; Charnock v. Taylor, 223 N.C. 360, 26 S.E.2d 911, 148 A.L.R. 1126; Tarkington v. Rock Hill Printing & Finishing Co., 230 N.C. 354, 53 S.E.2d 269, 11 A.L.R. 2d 221; Hobbs v. Goodman, 240 N.C. 192, 81 S.E.2d 413; Hayes v. City of Wilmington, 243 N.C. 525, 91 S.E.2d 673. It may be noted that Jordan v. Blackwelder, 250 N.C. 189, 108 S.E.2d 429, is not in conflict. The payment of medical bills there involved was applied by the court under a stipulation of the parties.

The insurance carrier who pays a joint tort-feasor's obligations to the injured party cannot force contribution from other tort-feasors. G.S. § 1-240, as interpreted by the many decisions of this Court, cannot be stretched to include subrogation, which arises by reason of contract, into contribution, which arises by reason of participation in the tort.

The judgment of the Superior Court of Guilford County is

Affirmed.