Hayes v. City of Wilmington

91 S.E.2d 673 (1956) 243 N.C. 525

W. J. HAYES, Administrator of the Estate of W. J. Hayes, Jr.
v.
CITY OF WILMINGTON, North Carolina; Towles-Cline Construction Company; E. B. Towles Construction Company, and S. E. Cooper, Trading and Doing Business as S. E. Cooper Company; John Lindsey Neal and Seaboard Surety Company.

No. 169.

Supreme Court of North Carolina.

February 29, 1956.

McClelland & Burney, Wilmington, McLean & Stacy, Lumberton, and R. M. Kermon, Wilmington, for defendants Cooper and Neal, appellants.

R. L. Savage, Raleigh, and James & James, Wilmington, for Towles-Cline Const. Co. and E. B. Towles Const. Co., appellants.

Hogue & Hogue, Wilmington, and A. Y. Arledge, Raleigh, for Carolina Power & Light Co., appellee.

JOHNSON, Justice.

Decision here turns on whether the amended cross complaint filed by the defendants Cooper and Neal states facts sufficient to constitute a cause of action for contribution against the power company. In determining this question, these principles of law established by our decisions come into focus:

1. Liability for contribution under the provisions of G.S. § 1-240 may not be invoked except among joint tortfeasors. Therefore, in order for one defendant to join another as a third-party defendant for the purpose of contribution, he must allege facts sufficient to show joint tortfeasorship and his right to contribution in the event plaintiff recovers against him. Hayes v. City of Wilmington, 239 N.C. 238, 79 S.E.2d 792.

2. In order to show joint tortfeasorship, it is necessary that the facts alleged in the cross complaint be sufficient to make the third party liable to the plaintiff along with the cross-complaining defendant in the event of a recovery by the plaintiff against him. Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559, 75 S.E.2d 768. Also, the allegations of the cross complaint must be so related to the subject matter declared on in the plaintiff's complaint as to disclose that the plaintiff, had he desired to do so, could have joined the third party as a defendant in the action. Hobbs v. Goodman, 240 N.C. 192, 81 S.E.2d 413; Id., 241 N.C. 297, 84 S.E.2d 904. However, it is established by our decisions that when a defendant in a negligent injury action files answer denying negligence but alleging, conditionally or in the alternative, that if he were negligent, a third party also was negligent and that the negligence of such third party concurred in causing the injury in suit, the defendant is entitled, on demand for relief by way of contribution, to have such third person joined as a co-defendant under the statute, G.S. § 1-240. Freeman v. Thompson, 216 N.C. 484, 5 S.E.2d 434; Lackey v. Southern Ry. Co., 219 N.C. 195, 13 S.E.2d 234; Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335, 156 A.L.R. 922.

3. When an alleged joint tortfeasor is brought into a case as an additional party defendant, and it turns out that no cause of action is stated against him, either in the main action or in a crossaction pleaded by another defendant, he is an unnecessary party to the action and, on motion, may have his name stricken from the record as mere surplusage. Fleming v. Carolina Power & Light Co., 229 N.C. 397, 50 S.E.2d 45; Winders v. Sutherland, 174 N.C. 235, 93 S.E. 726. For all practical purposes, the motion to strike operates as a demurrer and tests the legal sufficiency of the challenged pleading to state facts sufficient to constitute a cause of action against the additional party defendant. Citizens Bank of Marshall v. Gahagan, 210 N.C. 464, 187 S.E. 580.

The former appeal in this case was from an order allowing the motion of the power company to strike its name from the record on the ground that Cooper's cross complaint failed to state a cause of action against the power company for contribution. We affirmed the order of the lower court. It is to be noted, however, that the cross complaint did not fail because of lack of allegations of negligence against the power company. Indeed, the defective cross complaint contained plenary allegations of negligence against the power company. The fatal defect arose out of the manner in which Cooper dealt with the crucial element of proximate cause—his failure to allege joint tortfeasorship between himself and the power company. He alleged that the negligence of the power company was the sole proximate cause of the explosion. This allegation, positively made by Cooper, was never modified or varied by conditional averment or alternative plea to the effect that if the court should find him actionably negligent, then and in that event, the negligence of the power company concurred with his own negligence in causing the explosion and resultant death of the intestate. The result was that Cooper's original cross complaint failed to allege joint tortfeasorship —the prime essential to the statement of a cause of action for contribution under G.S. § 1-240. The opinion on former appeal takes cognizance of the three elements of negligence alleged against the power company, and then points out that "Nowhere is it alleged that the negligence of the power company concurred with the negligence of Cooper in causing the death of the intestate. Instead, he alleges that the negligence of the power company was the sole proximate cause of * * * injury and death." 239 N.C. mid. page 243, 79 S.E.2d top page 796. Thus, for want of allegations showing concurrent negligence of Cooper and the power company, Cooper's first cross complaint came to naught. The decision on former appeal was rested on this omission.

However, the power company now contends that the former decision rests on a broader base. It is urged that the former decision decided in part that Cooper's first cross complaint affirmatively disclosed negligence on his part which (1) intervened as an outside agency and completely insulated the negligence, if any, of the power company, or (2) at least invoked the doctrine of primary and secondary liability as between Cooper and the power company and exposed Cooper to primary liability. In support of these contentions, the power company relies on the following statements appearing in the opinion immediately after the pronouncement that Cooper's cross complaint failed to allege concurrent negligence on the part of Cooper and the power company:

"If we concede that Cooper has sufficiently alleged negligence on the part of the power company and that plaintiff will prove the acts of negligence he alleges against Cooper (which Cooper does not even conditionally concede in his cross complaint), it is made to appear that the acts of Cooper were the acts of an ``outside agency or responsible third person' which completely insulated the negligence, if any, of the power company. (Citing authorities.)

"The negligence, if any, of the power company was passive; that of defendant was active. Without the negligence of Cooper, the negligence of the power company would have caused no harm. The intervening acts of Cooper did not merely operate as a condition on or through which the negligence of the power company operated to produce the injury and deaths of plaintiff's intestates, or merely accelerate or divert the negligence of the power company. It broke the line of causation, * * so that it cannot be said that the power company could have reasonably foreseen the negligence of Cooper or that the two are joint tort-feasors.

"Moreover, the acts of negligence of the power company alleged by Cooper, when related to the negligence alleged by plaintiff, at least invokes the doctrine of primary and secondary liability, Cooper being the one primarily liable. And it is axiomatic that one who is primarily liable cannot recover over against one who is secondarily liable."

The power company points to the foregoing expressions and contends that the conclusions therein stated are part of the law of the case. The contention is supported by the further argument that since the amended cross complaint brings forward the same aspects of negligence which were alleged against the power company in Cooper's original cross complaint, it logically follows that the conclusions stated in the opinion of the Court on former appeal in respect to intervening negligence and primary liability bar maintenance of the new cross-action under application of the doctrine of the law of the case. The appellants, on the other hand, contend (1) that the original cross complaint filed by Cooper does not disclose that his negligence intervened and insulated, or relegated to a position of secondary liability, the negligence of the power company, and (2) that the conclusions to the contrary expressed in the opinion on former appeal are obiter dicta and therefore are not precedents in the sense of settling the law of the case.

As bearing on these contentions, it may be conceded that as a general rule when an appellate court passes on a question and remands the cause for further proceedings, the questions there settled become the law of the case, both in subsequent proceedings in the trial court and on subsequent appeal, provided the same facts and the same questions which were determined in the previous appeal are involved in the second appeal. Penny v. Atlantic Coast Line R. Co., 161 N.C. 523, 77 S.E. 774; McGraw v. Southern R. Co., 209 N.C. 432, 184 S.E. 31; Robinson v. McAlhaney, 216 N.C. 674, 6 S.E.2d 517; Templeton v. Kelley, 216 N.C. 487, 5 S.E.2d 555; Wall v. City of Asheville, 220 N.C. 38, 16 S.E.2d 397; Pinnix v. Griffin, 221 N.C. 348, 20 S.E.2d 366, 141 A.L.R. 1164; Bruce v. O'Neal Flying Service, 234 N.C. 79, 66 S.E.2d 312; 3 Am.Jur., Appeal and Error, Sec. 985.

However, the doctrine of the law of the case contemplates only such points as are actually presented and necessarily involved in determining the case. The doctrine does not apply to what is said by the reviewing court, or by the writing justice, on points arising outside of the case and not embodied in the determination made by the Court. Such expressions are obiter dicta and ordinarily do not become precedents in the sense of settling the law of the case. See: Griffith v. Griffith, 240 N.C. 271, 279, 81 S.E.2d 918, 924; Moose v. Board of Comm'rs, 172 N.C. 419, at pages 433 and 434, 90 S.E. 441, 448; Rodwell v. Rowland, 137 N.C. 617, at pages 638 and 640, 50 S.E. 319, 327; Barney v. Winona & St. P. R. Co., 117 U.S. 228, 6 S. Ct. 654, 29 L. Ed. 858; In re Norton's Estate, 177 Or. 342, 162 P.2d 379, 161 A.L.R. 439; Chicago, S. F. & C. R. Co. v. Swan, 120 Mo. 30, 25 S.W. 534; Jesse v. Cater, 28 Ala. 475; Wixson v. Devine, 80 Cal. 385, 22 P. 224; 3 Am.Jur., Appeal and Error, Sec. 996; 14 Am.Jur., Courts, Sec. 83; 5 C.J.S., Appeal and Error, § 1964.

"In every case what is actually decided is the law applicable to the particular facts; all other legal conclusions therein are but obiter dicta." Hill v. Houpt, 292 Pa. 339, 141 A. 159, 160.

On the subject of obiter dicta, we find this statement in Black, Law of Judicial Precedents, at page 173: "* * * if the statement in the opinion was * * * superfluous and not needed for the full determination of the case, it is not entitled to be accounted a precedent, for the reason that it was, so to speak, rendered without jurisdiction or at least extra-judicial. Official character attaches only to those utterances of a court which bear directly upon the specific and limited questions which are presented to it for solution in the proper course of judicial proceedings. Over and above what is needed for the solution of these questions, its deliverances are unofficial."

True, where a case actually presents two or more points, any one of which is sufficient to support decision, but the reviewing Court decides all the points, the decision becomes a precedent in respect to every point decided, and the opinion expressed on each point becomes a part of the law of the case on subsequent trial and appeal. In short, a point actually presented and expressly decided does not lose its value as a precedent in settling the law of the case because decision may have been rested on some other ground. 21 C.J.S., Courts, § 190, p. 314.

The rule that a decision of an appellate court is ordinarily the law of the case, binding in subsequent proceedings, is basically a rule of procedure rather than of substantive law, and must be applied to the needs of justice with a flexible, discriminating exercise of judicial power. In re Reamer's Estate, 331 Pa. 117, 200 A. 35, 119 A.L.R. 589; 3 Am.Jur., Appeal and Error, Sec. 985 (Supp). Therefore, in determining the correct application of the rule, the record on former appeal may be examined and looked into for the purpose of ascertaining what facts and questions were before the Court. Alerding v. Allison, 170 Ind. 252, 83 N.E. 1006; 3 Am.Jur., Appeal and Error, Sec. 985. Moreover, "An appellate court may on second appeal, correct an entry in the former judgment so as to make it express the true decision of the case." 3 Am.Jur., Appeal and Error, Sec. 986. Particularly is this so where, as here, the case is still in the interlocutory stage and nothing has been done that can prejudice either of the parties. Durham v. Eno Cotton Mills, 144 N.C. 705, 57 S.E. 465, 11 L.R.A.,N.S., 1163.

Thus we come to consider the crucial question: Does Cooper's original cross complaint allege negligence on his part which as a matter of law (1) intervened and insulated the negligence, if any, of the power company, or (2) invoked the doctrine of primary and secondary liability as between Cooper and the power company and fixed Cooper with primary liability? If such negligence, in either or both aspects, on the part of Cooper is disclosed by the facts alleged in the original cross complaint, then the conclusion to that effect expressed in the opinion on former appeal must be treated as the law of the case in respect to the aspect or aspects of such negligence as may be so disclosed On the other hand, if the challenged conclusions be unsupported by the facts alleged in the original cross complaint, they will be treated as dicta only.

An examination of the record on former appeal discloses that Cooper nowhere in his original answer or cross complaint admits or alleges negligence of any sort on his part. He denies all the allegations of negligence made against him by the plaintiff. Whereas all the allegations of negligence contained in his cross complaint are asserted against the power company as the sole proximate cause of the explosion. All this is stated in the opinion on former appeal. What, then, is the factual basis for the conclusions therein expressed to the effect that Cooper is fixed with negligence which (1) intervened and insulated the negligence, if any, of the power company, or (2) at least relegated the power company's negligence to a position of secondary liability? The challenged conclusions, as stated in the opinion, are based on the assumption "that plaintiff will prove the acts of negligence he alleges against Cooper, * * *." It thus appears that the premise upon which the challenged conclusions rest is based upon facts appearing in the plaintiff's complaint against Cooper, rather than in Cooper's cross complaint against the power company. This being so, the premise must be rejected as being based on facts not presented by or involved in the appeal. The single question before the Court was whether Cooper's cross complaint alleged facts sufficient to state a cause of action for contribution. In making this determination, the Court could not borrow from the allegations of the complaint or assume that the allegations thereof would be proved against him. The question whether Cooper was negligent was determinable wholly and solely on the basis of the allegations of his original cross complaint. The power company's motion to strike, used as a demurrer, tested only the sufficiency of the allegations of the cross complaint. It is elemental that a demurrer may not call to its aid facts not appearing on the face of the challenged pleading. Union Trust Co. v. Wilson, 182 N.C. 166, 108 S.E. 500; Wood v. Kincaid, 144 N.C. 393, 57 S.E. 4; Davison v. Gregory, 132 N.C. 389, 43 S.E. 916. A fortiori, decision on demurrer may not be resolved on the basis of an assumption that the ultimate proofs will be different from those alleged.

It necessarily follows from what we have said that the challenged conclusions derive from sources outside the scope of decision and relate to questions not presented for decision. Therefore, they will be treated as obiter dicta and disregarded as settling the law of the case.

We have not overlooked the fact that while the power company in its motion to strike did not assign as ground therefor the application of either the doctrine of intervening negligence or that of primary and secondary liability, nevertheless, the order entered by the presiding judge allowing the motion recites that he was of the opinion that the doctrine of intervening negligence applied and precluded Cooper from recovering over against the power company. And conceding, as we may, that the presiding judge's controlling reason for allowing the motion was his belief that the doctrine of intervening negligence applied, even so, his reason as so assigned, arising as it did outside the scope of the motion and being wholly unsupported by the facts alleged in the cross complaint then under test, was immaterial to decision on appeal. When the case reached this Court, the question for review and decision was whether the ruling of the court below was correct, and not whether the reason given therefor or the ground on which it professed to be based is sound or tenable. 5 C.J.S., Appeal and Error, § 1464. See also Bell v. Cunningham, 81 N.C. 83; Hughes v. McNider, 90 N.C. 248; Alabama Public Service Commission v. Mobile Gas Co., 213 Ala. 50, 104 So. 538, 41 A.L.R. 872; Collier v. Stamatis, 63 Ariz. 285, 162 P.2d 125; Duckwall v. Gregg's Adm'r, 297 Ky. 730, 181 S.W.2d 263; Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469.

Manifestly, the challenged conclusions appearing in the opinion on former appeal relate to questions not presented by the record for decision. The conclusions are obiter nonetheless because they derive from unfounded reasons given by the lower court for its decision. In this sense, the challenged conclusions are not only dicta but double dicta.

We have given due consideration to the appellee's citations of authorities and argument relating to the principles governing res judicata and stare decisis. On this record, these principles may not be called to the appellee's aid. The authorities cited are factually distinguishable.

We now return to the main question for decision, which is: Do Cooper and Neal in their amended cross complaint state facts sufficient to constitute a cause of action for contribution against the power company? The amended pleading brings forward and amplifies the allegations of negligence contained in the original cross complaint. It states facts sufficient to charge the power company with negligence in several particulars. The acts and omissions of negligence as charged against the power company are alleged to have concurred with any negligence chargeable against Cooper and Neal in causing the explosion and resultant death of the intestate, and due demand is made for contribution. In short, the amended pleading closes all the hiatuses which rendered the first pleading fatally defective. All the essentials requisite to the statement of a cause of action for contribution have been met.

True, the allegations to the effect that the negligence of the power company concurred with the negligence of Cooper and Neal are made in the alternative, expressly conditioned upon actionable negligence being found against them. However, we think such conditional plea of concurrent negligence is sufficient to enable Cooper and Neal to invoke the right of contribution under the statute, G. S. § 1-240. There is no merit in the power company's contention that the conditional plea of joint and concurrent negligence as made by Cooper and Neal is a mere conclusion of the pleader to be disregarded. The form of the plea as made has the sanction of the Court. See Freeman v. Thompson, supra, 216 N.C. 484, 5 S.E.2d 434; Lackey v. Southern Ry. Co., supra, 219 N.C. 195, 13 S.E.2d 234; Mangum v. Southern Ry. Co., 210 N.C. 134, 137, 185 S.E. 644.

Nor is there any merit in appellee's further contention that the conditional plea of concurrent negligence made by Cooper and Neal is destroyed by their positive denials of negligence and by their allegations of negligence over against other defendants asserted in other portions of their amended answer. As to this contention, it is enough to say that a defendant who elects to plead a joint tortfeasor into his case is not required to surrender other defenses available to him. Nor may an additional party defendant who is brought in as a joint tortfeasor on cross complaint of an original defendant escape the plea against him by borrowing from contradictory allegations made by the cross-complaining defendant by way of defense against the plaintiff or by way of separate pleas over against other defendants. It is elemental that a defendant may set up and rely upon contradictory defenses. Freeman v. Thompson, supra.

Moreover, the amended cross complaint is free of allegations implying negligence as a matter of law on the part of Cooper and Neal which intervened and insulated the negligence, if any, of the power company.

The doctrine of intervening negligence is well established in our law. Its essential elements and governing principles are well defined and elaborately explained in former decisions of this Court. Further elaboration here is unnecessary. Balcum v. Johnson, 177 N.C. 213, 98 S.E. 532; Kiser v. Carolina Power & Light Co., 216 N.C. 698, 6 S.E.2d 713; Beaver v. Town of China Grove, 222 N.C. 234, 22 S.E.2d 434; Riggs v. Akers Motor Lines, 233 N.C. 160, 63 S.E.2d 197; Hall v. Coble Dairies, 234 N.C. 206, 67 S.E.2d 63, 29 A.L.R. 2d 682; Reynolds v. Murph, 241 N.C. 60, 84 S.E.2d 273; Tillman v. Bellamy, 242 N.C. 201, 87 S.E.2d 253. These decisions emphasize the principle that an intervening cause which will relieve the original wrongdoer of liability must be a new cause intervening between the original negligent act or omission and the injury ultimately suffered, which breaks the chain of causation set in motion by the original wrongdoer and becomes itself solely responsible for the injuries. It must be an independent force which turns aside the natural sequence of events set in motion by the original wrongdoer "and produces a result which would not otherwise have followed, and which could not have been reasonably anticipated." (Italics added.) Hall v. Coble Dairies, supra, 234 N.C. at page 211, 67 S.E.2d at page 67.

It is immaterial how many new events or forces have been introduced if the original cause remains operative and in force. In order for the conduct of the intervening agent to break the sequence of events and stay the operative force of the negligence of the original wrongdoer, the intervening conduct must be of such nature and kind that the original wrongdoer had no reasonable ground to anticipate it. Balcum v. Johnson, supra. (Italics added.)

"The test by which the negligent conduct of one is to be insulated as a matter of law by the independent negligent act of another is reasonable unforeseeability on the part of the original actor of the subsequent intervening act and resultant injury." (Italics added.) Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808. See also Beach v. Patton, 208 N.C. 134, 179 S.E. 446.

In 38 Am.Jur., Negligence, Sec. 67, pp. 722 and 723, the principle is stated this way: "In order to be effective as a cause superseding prior negligence, the new, independent, intervening cause must be one not produced by the wrongful act or omission, but independent of it, and adequate to bring about the injurious result; a cause which interrupts the natural sequence of events, turns aside their course, prevents the natural and probable result of the original act or omission, and produces a different result, that reasonably might not have been anticipated." (Italics added.)

"If the intervening cause is in reality only a condition on or through which the negligence of the defendant operates to produce an injurious result, it does not break the line of causation so as to relieve the original wrongdoer from responsibility for the injury. 38 A.J. 723. A superseding cause cannot be predicated on acts which do not affect the final result of negligence otherwise than to divert the effect of the negligence temporarily, or of circumstances which merely accelerate such result. (citing authority.)

"``The inquiry must, therefore, always be whether there was any intermediate cause disconnected from the primary fault, and self-operating, which produced the injury.'" Riggs v. Akers Motor Lines, supra, 233 N.C. at page 165, 63 S.E.2d at page 201.

Ordinarily, "the connection is not actually broken if the intervening event is one which might in the natural and ordinary course of things, be anticipated as not entirely improbable, and the defendant's negligence is an essential link in the chain of causation." Shearman and Redfield on Negligence, Revised Ed., Vol. 1, Sec. 38, p. 101.

The allegations made by Cooper and Neal against the power company in the amended cross complaint disclose averments of negligence in substance as follows: (1) that the power company placed the gas pipe leading from the street to the Hayes home in shallow ground, dangerously near the surface of the street, only nine inches below the surface at the curb line, where it was struck by the motor grader; (2) that it installed the pipe under the Hayes house in an insecure manner, unanchored at the meter or along the joists and exposed and unsupported along the fall line from the meter to the feed line at the side of the house, so that the pipe under the house could be swayed, moved, and easily broken off at the meter; (3) that the Hayes house was bricked up tight underneath, and in making the installation the power company failed to provide a vent to allow leaking gas to escape or be channeled to open air, thereby creating a condition by which escaping gas when accumulated would seep through the floors and walls of the house and come into contact with fire, and thus cause an explosion; (4) that the power company knew that by regulation of the City of Wilmington its gas pipes were required to be kept at a safe depth—"in this case more than 20 inches below the surface of the street, * * *"; (5) that the power company had notice that Barnard Drive was to be graded and paved; that it should have foreseen that unless the pipes were lowered, the grading machine would likely strike the gas pipe in the street and disrupt the connection under the house and thereby permit gas to escape into the tight compartment under the house, which had no outside vent, and that an explosion was likely to occur in the way and manner in which it did actually occur, yet the power company took no step to remedy the dangerous installations made by it in the street and under the Hayes house.

These allegations, and others of similar import, when taken as true, as is the rule on motion to strike used as a demurrer, disclose negligence on the part of the power company which continued as an active, operative force down to the time of the explosion. Indeed, the allegation that the power company allowed the dangerous condition allegedly created by it to continue after notice that the grading was about to commence implies the existence of a new activating force negligently set in motion on the eve of the explosion. Also, it is noted that the element of reasonable foreseeability, the presence of which defeats operation of the doctrine of intervening negligence, is not left to inference or implication, as is usually the case in negligence pleading. Pinnix v. Toomey, 242 N.C. 358, 87 S.E.2d 893. Here it is expressly alleged that the power company was charged with foreseeing the explosion.

It is manifest that the amended cross complaint does not disclose negligence on the part of Cooper and Neal which as a matter of law intervened and insulated the alleged negligence of the power company.

Nor does the amended cross complaint disclose negligence on the part of Cooper and Neal which fixes them as a matter of law with primary liability under application of the doctrine of primary and secondary liability. This doctrine as applied in tort cases is a branch of the law of indemnity. The doctrine rests on flexible principles of equity and natural justice. Taylor v. J. A. Jones Construction Co., 195 N.C. 30, 141 S.E. 492; Wrights Clothing Store v. Ellis Stone, 233 N.C. 126, 63 S.E.2d 118; Hunsucker v. High Point Bending & Chair Co., supra, 237 N.C. 559, 75 S.E.2d 768. It has no all-embracing definition. However, in general terms, the rationale of the doctrine as deduced from the decisions may be stated as follows: Where two persons are jointly liable in respect to a tort, one being liable because he is the actual wrongdoer, and the other by reason of constructive or technical fault imposed by law, the latter, if blameless as between himself and his co-tortfeasor, ordinarily will be allowed to recover full indemnity over against the actual wrongdoer. Decision here does not require an extended discussion of the principles governing application of this remedy. See these decisions involving municipal street cases: Dillon v. City of Raleigh, 124 N.C. 184, 32 S.E. 548; Gregg v. City of Wilmington, 155 N.C. 18, 70 S.E. 1070; Guthrie v. City of Durham, 168 N.C. 573, 84 S.E. 859; Conway v. Lenoir Oil & Ice Co., 169 N.C. 577, 86 S.E. 524, L.R.A. 1916B, 945; Ridge v. City of High Point, 176 N.C. 421, 97 S.E. 369; Bowman v. City of Greensboro, 190 N.C. 611, 130 S.E. 502; Ferguson v. City of Asheville, 213 N.C. 569, 197 S.E. 146; Broadhurst v. Blythe Bros. Co., 220 N.C. 464, 17 S.E.2d 646. See these decisions involving agency and imputed liability cases: Smith v. South & Western R. Co., 151 N.C. 479, 66 S.E. 435; Gadsden v. George H. Crafts & Co., 175 N.C. 358, 95 S.E. 610, L.R.A.1918E, 226; Taylor v. J. A. Jones Construction Co., supra, 195 N.C. 30, 141 S.E. 492; Johnson v. City of Asheville, 196 N.C. 550, 146 S.E. 229; Cheshire v. Wright, 243 N.C. 441, 90 S.E.2d 687; Newsome v. Surratt, 237 N.C. 297, 74 S.E.2d 732. See also these decisions involving defective property cases, defectively manufactured articles, and miscellaneous other fact situations: Williams v. Charles Stores Co., Inc., 209 N.C. 591, 184 S.E. 496; Crowell v. Eastern Air Lines, 240 N.C. 20, 81 S.E.2d 178; Davis v. Radford, 233 N.C. 283, 63 S.E.2d 822, 24 A.L.R. 2d 906; Lucas v. Norfolk Southern R. Co., 165 N.C. 264, 80 S.E. 1076; Bost v. Metcalfe, 219 N.C. 607, 14 S.E.2d 648; Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886; Hunsucker v. High Point Bending & Chair Co., supra, 237 N.C. 559, 75 S.E.2d 768. See also 27 Am. Jur., Indemnity, Sections 18 and 19.

For the purpose of decision here it suffices to direct attention to an established rule of exclusion which prevents application of the principles of indemnity. The rule may be stated in gist as follows: Indemnity is not permitted where the indemnity seeker and the person against whom indemnity is sought breached substantially equal duties owed to the injured person. Where this occurs, the violations produce no great difference in gravity of fault as between the joint tortfeasors, and both are on substantially the same plane of moral fault. Both parties being in pari delicto, neither will be held in law to be the principal wrongdoer, and therefore neither party will be required to relieve the other of the entire loss. It is a case for contribution rather than indemnity. Taylor v. J. A. Jones Construction Co., supra; Crowell v. Eastern Air Lines, supra; Ridge v. City of High Point, supra, 176 N.C. 421, 97 S.E. 369; North Carolina Electric Power Co. v. French Broad Mfg. Co., 180 N.C. 597, 105 S.E. 394. See also Williams v. Charles Stores Co., Inc., supra, 209 N.C. 591, 184 S.E. 496.

Reference has already been made to the crucial phases of negligence alleged against the power company by Cooper and Neal in their amended cross complaint. The allegations, when taken as true, imply that the power company breached duties of the gravest sort owed by it to the members of the Hayes family, including the intestate. It is manifest that the duties allegedly breached by the power company were substantially equal to the duties owed by Cooper and Neal to the intestate. Necessarily, then, upon the record as presented, the power company is at least in pari delicto with Cooper and Neal. This defeats application of the principles of indemnity in favor of the power company.

The power company is privileged to plead and rely on the defense of intervening negligence and also that of indemnity. But since these defenses do not affirmatively appear upon the face of the Cooper-Neal pleading, they may not be brought in by way of speaking demurrer when the pleading is being tested only to determine whether it alleges a cause of action for contribution. Union Trust Co. v. Wilson, supra, 182 N.C. 166, 108 S.E. 500.

Since the allegations set out in the cross complaint filed by the defendants Towles-Cline Construction Company and E. B. Towles Construction Company are substantially the same as those alleged in the amended pleading filed by Cooper and Neal, we conclude that each cross complaint alleges facts sufficient to constitute a cause of action for contribution against the power company. This necessarily works a reversal of the judgment below in favor of each appellant.

Reversed.

PARKER and BOBBITT, JJ., concur in result.

BARNHILL, Chief Justice (dissenting).

In cases such as Hayes v. City of Wilmington, 239 N.C. 238, 79 S.E.2d 792, where the only exceptive assignment of error is directed to alleged error in the judgment in that the judgment is made to rest on an erroneous conclusion of law, it is well to read the judgment before stating that a substantial and material part of the opinion in the case is obiter dictum as is here done.

In that case the presiding judge not only concluded that the facts alleged by Cooper disclose as a matter of law that his conduct constituted an intervening act of a responsible third party which was not foreseeable by the power company and which completely insulated the negligence, if any, of the power company, but he also, in effect, wrote an opinion setting forth that conclusion and cited pertinent opinions of this Court in support thereof. He wrote in part as follows:

"* * * It is common knowledge that gas lines, such as are described by the defendant Cooper, are in common use in all of the large cities and towns. They are buried beneath the surface of the earth and are harmless if let alone. If the gas pipes in question in this case were buried too near the surface of the ground, that, in itself, could not make them an active source of danger. If the power companies were negligent at all, such negligence was passive and inactive; it was dormant, and in order to become a source of danger the intervention of an active negligent act became necessary. Following the reasoning laid down in Wharton on Negligence, Section 136: Supposing that if it had not been for the intervention of a responsible third party, the defendant's (Power Companies') negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? The question must be answered in the negative; for the reason that causal connection between negligence and damage is broken by the interposition of independent human action. Say I am negligent on a particular subject matter. Another person, moving independently, comes in, and either negligently or maliciously so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a nonconductor, and insulates my negligence, so that I cannot be sued for the mischief which the person so intervening directly produces. He is the one who is liable to the person injured.

"To the same effect see: Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808. Smith v. Sink, 211 N.C. 725, 192 S.E. 108. Hinnant v. Atlantic Coast Line R. Co., 202 N.C. 489, 163 S.E. 555. Guthrie v. Gocking, 217 N.C. 476, 86 S.E.2d 607.

"See also in particular: Baker v. Atlantic Coast Line R. Co., 205 N.C. 329, 333, 171 S.E. 342.

"So that here we have this state of fact: The two power companies, or, rather the Tide Water Power Company, constructed a system of gas lines under the streets of the City of Wilmington, in order to supply gas to the citizens. Connecting pipes carried the gas from the Mains in the streets into the residences of citizens. These pipes, if left alone, in their original condition, were not dangerous at all. There was no way that the Power Companies could foresee that such a disaster would occur as did occur on December 31, 1951.

"But somebody slipped a cog, an intervening force, moving independently, comes in, one of the gas pipes is twisted out of position so that the connection in the residence of plaintiff's intestates is broken, gas escapes, is ignited, and two human beings are launched into eternity from a terrific explosion which followed.

"The court cannot see, under the facts as alleged in the pleadings of the defendant Cooper, that the two power companies can be held liable for what happened. . . ."

He thereupon entered judgment on the conclusion thus made, striking the names of the power companies as additional parties defendant. Cooper excepted and appealed, and in his brief on appeal he devotes approximately two pages of his brief to an attempt to refute the conclusion that his conduct insulated the negligence of the power company as alleged by him. That question is likewise discussed at some length in the brief of the appellees.

That is to say, both the appellant and the appellees recognized that the judgment entered could not be reversed unless the appellant convinced this Court that the trial judge erred in his conclusion on the question of insulated negligence.

Under these circumstances I am at a loss to conceive how this Court could either affirm or reverse the judgment under review in that case without considering and deciding whether the judge was correct in arriving at the conclusion on which he made his judgment rest. Yet it is now said that the discussion of that question in Hayes v. City of Wilmington, supra, is obiter dictum and wholly unnecessary to that decision. To this I cannot agree, and as I still hold to the opinion there expressed, I vote to affirm.

It is well to note that the procedure pursued on the original hearing and the dismissal of the additional defendants on the grounds that their negligence, if any, was insulated is in accord with recent decisions of this Court. Potter v. Frosty Morn Meats, Inc., 242 N.C. 67, 86 S.E.2d 780; Loving v. Whitton, 241 N.C. 273, 84 S.E.2d 919; Troxler v. Central Motor Lines, 240 N.C. 420, 82 S.E.2d 342, and cases cited; McLaney v. Anchor Motor Freight, Inc., 236 N.C. 714, 74 S.E.2d 36.

Since the foregoing was written, the majority opinion has been substantially revised. Even so, I shall permit my dissent to remain as it is with the following addition to meet the change of position in the majority opinion.

When Cooper failed to file a petition for rehearing, the original opinion became the law of the case. To avoid the effect of his failure so to do and to justify the novel procedure adopted to grant a rehearing, the majority now undertake to treat the original notice and motion to strike as a demurrer ore tenus. Judge Grady labeled his judgment "Judgment on Motion of (power companies) and on Demurrer Ore Tenus to Further Answer and Cross-Bill of S. E. Cooper." The motion of the power companies was a motion to strike for the reason the cross action does not allege a cause of action which may be pleaded under the terms of G.S. § 1-240. There is no notation of a demurrer ore tenus in the record or any reference thereto except as noted above.

An original party defendant may not have a third party made an additional defendant for the purpose of seeking contribution until or unless he alleges a cross action which the plaintiff might have pleaded against such third party if he had elected so to do. Thus we must look to the complaint as well as to the cross action alleged to determine whether or not the original defendant has alleged a cross complaint which entitles him to have the third party made a party defendant. That the cross complaint does not constitute a cause of action which might have been pleaded by the party plaintiff is the one ground which entitles the third party to have his name stricken. If the cross action does allege such a cause of action, the motion to strike should be denied. If it does not allege such a cause of action, the name of the third party should be stricken as a matter of right.

The two pleadings—a motion to strike and a demurrer ore tenus—are essentially different in purpose and effect. When a motion to strike is allowed, the movant goes out of court and is no longer a party to the action. On the other hand, when a demurrer ore tenus for failure to state a cause of action is sustained, the pleader may amend his pleading so as to allege sufficient facts to constitute a good cause of action, and the demurrant must then answer. On the original appeal all the parties treated the motion just as it was—a motion to strike. The majority now seek to make it a demurrer ore tenus so as to justify the novel procedure adopted to reverse the original opinion without saying so. If a majority of the Court has determined that we were in error in our conclusion in the original opinion, we should say so and be done with it. We are human, and, as others, we make mistakes, and when we conclude that we have made a mistake, we should not hesitate to admit the fact without attempting to explain it away without admission of error. It does not take nineteen pages to admit an error in one opinion.

It is stated that what was said in the original opinion about insulated negligence and primary and secondary liability was obiter dictum. Oddly enough, the majority opinion now devotes six to eight times as much space to a discussion of these two doctrines as was used in the original opinion.

It might not be amiss to make further comment on other statements contained in the majority opinion. However, if the Court is to adopt this unusual and indirect method of granting a rehearing of the former decision, any discussion of those questions would serve no useful purpose.

I dissent for the reasons that:

(1) I am still of the opinion that the admitted conduct of Cooper insulated the negligence, if any, of the power companies. Rulane Gas Co. v. Montgomery Ward & Co., 231 N.C. 270, 56 S.E.2d 689, is directly in point except that the facts here alleged by Cooper and plaintiff make out a stronger case of insulated negligence than does the evidence in the Gas Co. case.

(2) The majority attempt to treat the motion to strike as a demurrer; and

(3) When Cooper failed to petition for a rehearing, the original opinion became the law of the case, and I cannot concur in the novel method now adopted to avoid the effect of that opinion. It will surely rise up to plague us in the future.