Potter v. Frosty Morn Meats, Inc.

86 S.E.2d 780 (1955) 242 N.C. 67

Norma POTTER
v.
FROSTY MORN MEATS, Inc., Luther Cobb, J. L. Goldman, and Elbert Potter.

No. 377.

Supreme Court of North Carolina.

April 13, 1955.

Whitaker & Jeffress, Kinston, for defendant appellant.

White & Aycock, Kinston, for defendant appellees.

DEVIN, Justice.

We note that the record on appeal in this case contains the stipulation that "the only question presented in this appeal is the sufficiency of the defendant appellant Elbert Potter's alleged cross-action, as contained in his answer." Hence we will confine our consideration to the facts alleged in defendant Elbert Potter's cross complaint as the basis for subjecting the appellees to contingent liability for contribution as joint tort-feasors.

The right of one defendant sued in tort to maintain a cross action against another to determine his contingent liability for contribution in the event of recovery by the plaintiff is conferred by statute, G.S. § 1-240, and recognized in numerous decisions of this Court. White v. Keller, N.C., 86 S.E.2d 795; Evans v. Johnson, 225 N.C. 238, 34 S.E.2d 73; Godfrey v. Tidewater Power Co., 223 N.C. 647, 27 S.E.2d 736, 149 A.L.R. 1183; Canestrino v. Powell, 231 N.C. 190, 56 S.E.2d 566. The right is purely statutory. Its enforcement must accord with the provisions of section 1-240 of the General Statutes. Hayes v. City of Wilmington, 239 N.C. 238, 79 S.E.2d 792. The purpose of the statute is to permit litigation of contingent liabilities before they have accrued. Evans v. Johnson, supra. "It creates a new right, provides an exclusive remedy, and substantial compliance with its terms is necessary to make it available." Hoft v. Mohn, 215 N.C. 397, 2 S.E.2d 23, 25.

In order to maintain a cross action against another for contribution under this statute, the original defendant must allege facts sufficient to show that both of them are liable to the plaintiff as joint tortfeasors. Hayes v. City of Wilmington, supra. It will not be sufficient for this purpose if the facts alleged merely make it appear that the injurious acts of which the plaintiff complains were those of "an outside agency or responsible third person", as defined in Smith v. Sink, 211 N.C. 725, 192 S.E. 108, 109, or are sufficient only to invoke the application of the doctrine of primary and secondary liability. Tarkington v. Rock Hill Printing & Finishing Co., 230 N.C. 354, 53 S.E.2d 269, 11 A.L.R. 2d 221; Bost v. Metcalfe, 219 N.C. 607, 14 S.E.2d 648; Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559, 75 S.E.2d 768. The right permitted to be enforced under this section is one of contribution and not one of subrogation. Tarkington v. Rock Hill Printing & Finishing Co., supra. Allegations in the cross complaint alleging negligence of another defendant as the sole proximate cause of the injury are demurrable. Walker v. Loyall, 210 N.C. 466, 187 S.E. 565; Perry v. Sykes, 215 N.C. 39, 200 S.E. 923. The cross complaint must allege facts which, if proven, would render the alleged joint tortfeasor liable to him for contribution in the event the plaintiff recovers. Bost v. Metcalfe, supra. It must allege facts tending to show negligence on the part of the alleged joint tort-feasor proximately contributing to the injury.

"It is the joint tort and common liability to suit which gives rise to the right to ``enforce contribution' under the statute." Tarkington v. Rock Hill Printing & Finishing Co., supra [230 N.C. 354, 53 S.E.2d 271].

"To constitute two or more persons joint tort-feasors the negligent or wrongful act of the one must be so united in time and circumstance with the negligent or tortious act of the other that the two acts in fact constitute but one transaction." Shaw v. Barnard, 229 N.C. 713, 51 S.E.2d 295, 296.

In the case at bar the pleadings tend to show that on a curve in a much traveled two-lane highway, in the village of Auburn, the defendant Goldman had left his automobile standing on the paved portion of the highway. The front of Goldman's automobile was toward the west. In that situation the truck of defendant Frosty Morn Meats, Inc., driven by defendant Cobb, moving west, drove up behind the Goldman automobile and stopped without any signal being given of intention so to do. Thereafter the defendant Elbert Potter, also traveling west, drove his automobile into the rear of the truck of the corporate defendant, causing injury to plaintiff Norma Potter who was a passenger in defendant Potter's automobile. It was alleged in the complaint that defendant Potter was negligent in failing to keep proper lookout and driving at unsafe distance back of the truck. It was also alleged by the defendant Potter that the truck of defendant Frosty Morn Meats, Inc., had been driven carelessly and at unlawful speed. But these last allegations may be disregarded as the truck was standing still at the time of the collision. We observe that appellant's cross complaint is lacking in definite statement as to what occurred on this occasion, and deals more in general expressions.

It is not alleged how long the truck had been stopped on the highway before the defendant Potter's automobile struck it, but apparently for an appreciable space of time. We note that the court previously, on substantially similar allegations, had sustained the demurrer of these defendants to the complaint of the plaintiff, who was a passenger in defendant Potter's automobile, and had dismissed them from plaintiff's action. It would seem to follow that any negligence on the part of the driver of the truck in failing to give a signal of his intentions to stop as required by the statute had ceased to operate, and that it was the active negligence of defendant Potter in failing to observe the truck and avoid the collision which proximately caused the plaintiff's injury. The principle is recognized in Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808, that if the original negligent omission only becomes injurious in consequence of the intervention of some distinct wrongful act or omission on the part of another, the injury is to be imputed to the last wrong as the proximate cause rather than the first.

The facts in this case in some respects appear similar to those in McLaney v. Anchor Motor Freight, 236 N.C. 714, 74 S.E.2d 36. In that case the complaint alleged that the plaintiff was a passenger in an automobile driven by one of the defendants; that this automobile collided with the rear of the truck and trailer of defendant Motor Freight, Inc., which had stopped on the highway. It was alleged that the driver of the truck had failed to give signal of his intention to slow down or stop. The demurrer of Motor Freight, Inc., was, on appeal, sustained by this Court in an opinion by Winborne, J., in which Murray v. Atlantic Coast Line R. Co., 218 N.C. 392, 11 S.E.2d 326, was cited as an authority.

The same principle was applied in Hollifield v. Everhart, 237 N.C. 313, 74 S.E.2d 706, where, on similar facts alleged, the demurrer was sustained.

Also in the recent case of Loving v. Whitton, 241 N.C. 273, 84 S.E.2d 919, 922, a similar result was reached. There it was alleged that Whitton drove his automobile from a side street into an arterial highway, without stopping at the stop sign, and was struck by Gibson's automobile coming from his right. It was alleged that Gibson was driving at excessive speed and without sounding warning. The demurrer of Gibson was sustained. In the opinion written for the Court by Barnhill, C. J., it was said:

"* * * the conduct of Gibson may not be held to constitute one of the proximate causes of the collision. The conduct of Whitton made the collision inevitable, insulated any prior negligence of Gibson, and constitutes the sole proximate cause of the collision."

In the case of Garner v. Pittman, 237 N.C. 328, 75 S.E.2d 111, the plaintiff sued both the driver of the automobile in which she was riding and the driver of another automobile with which her automobile collided. It was held the negligence of plaintiff's driver in driving into the highway insulated that of the driver of the second automobile though he was driving at excessive speed, under the rule enunciated in Butner v. Spease, supra.

Likewise the same principle is illustrated in Smith v. Grubb, 238 N.C. 665, 78 S.E.2d 598. In this case the plaintiff sued both Grubb and Delma Smith, alleging that Grubb's automobile was stopped on the pavement of the highway and that plaintiff, in a pick-up truck, drove up and stopped behind the Grubb automobile. In this position plaintiff's truck was struck from the rear by the automobile of Delma Smith. The impact forced plaintiff's truck into the left lane of the highway where it was struck by an automobile being driven in the opposite direction, and plaintiff was injured. It was held that Grubb's demurrer ore tenus should have been sustained. The principles to which this Court gave expression in Balcum v. Johnson, 177 N.C. 213, 98 S.E. 532; Hinnant v. Atlantic Coast Line R. Co., 202 N.C. 489, 163 S.E. 555; Butner v. Spease, supra, were applied.

We reach the conclusion that the facts alleged in defendant Potter's cross complaint, upon which he seeks to hold the defendants Frosty Morn Meats, Inc., and Luther Cobb in the case in order to determine their contingent liability to him as joint tort-feasors under the statute, are insufficient for that purpose, and that the judgment sustaining the demurrer should be upheld.

Affirmed.

BARNHILL, C. J., took no part in the consideration or decision of this case.