Wilson v. Bob Robinson's Auto Service, Inc.

200 S.E.2d 393 (1973) 20 N.C. App. 47

Lillian Harriett WILSON, Plaintiff,
v.
BOB ROBINSON'S AUTO SERVICE, INC., Defendant and Third-Party Plaintiff,
v.
GENUINE PARTS COMPANY, INC., First Third-Party Defendant and Second Third-Party Plaintiff,
v.
PRIOR SOUTHWEST, INC., Second Third-Party Defendant.

No. 7326SC771.

Court of Appeals of North Carolina.

November 28, 1973.

Allen A. Bailey by Douglas A. Brackett and Martin L. Brackett, Jr., Charlotte, for plaintiff appellant.

Carpenter, Golding, Crews & Meekins by John G. Golding, Charlotte, for defendant and first third-party plaintiff appellee, Bob Robinson's Auto Service, Inc.

Craighill, Rendleman & Clarkson, P.A., by James B. Craighill, Charlotte, for second third-party defendant appellant, Prior Southwest, Inc.

CAMPBELL, Judge.

Bob Robinson's contends that this appeal is premature and should be dismissed since under G.S. § 1A-1, Rule 54, no final judgment has been entered. Motions to that effect have been filed. However, in Gillikin v. Mason, 256 N.C. 533, 124 S.E.2d 541 (1962), the Supreme Court reviewed the allowance of a motion for nonsuit in a case involving a mistrial. Bob Robinson's contention that the trial court's orders allowing the motions in the case at bar are binding in the trial de novo but that the plaintiff and Southwest have no present right of appeal as to those orders is not consistent with Gillikin, supra.

The motions to dismiss here are to be construed as motions for directed verdicts. Pergerson v. Williams, 9 N.C. App. 512, 176 S.E.2d 885 (1970). In considering the sufficiency of the evidence to withstand a motion for directed verdict, we must consider the evidence in the light most favorable to the nonmoving party. Gillikin v. Mason, supra; Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). We find that the evidence was sufficient to go to the jury and that the directed verdicts against the plaintiff should not have been granted. Since the matter was set for retrial anyway and our decision merely allows a complete trial de novo, we do not deem it necessary to review the evidence as it may be different upon retrial.

Bob Robinson's contends that the cross-action of Southwest must be dismissed since, if Southwest were held liable for indemnity to Genuine Parts, then it could obviously not be entitled to indemnity or contribution from Robinson's who would have had to have been found without fault as to Genuine Parts.

We do not find the connection so obvious. The question of indemnity between Robinson's and Genuine Parts and the question of indemnity between Genuine Parts and Southwest are wholly separate questions from that of passive or active negligence as between Robinson's and Southwest and whether there is joint or several liability as between Robinson's and Southwest. We would note that G.S. 1B-1 would not require a judgment in favor of the plaintiff against Southwest for Southwest to be successful in its cross-action against Robinson's. Therefore, Southwest's cross-action is quite properly a part of this lawsuit. We thus face a question of the sufficiency of the evidence to withstand a motion for a directed verdict as to Southwest's cross-action. We find the evidence sufficient but do not deem it necessary to review such evidence as it may be different upon retrial.

Reversed.

BROCK, C.J., and BALEY, J., concur.