It is a well established rule that a party injured can sue any or all joint tort-feasors for actionable negligence. As a generalY| rule there can be no contribution or indemnity among mere tort-feasors. J | This rigor of the ride is modified in two classes of cases: “Where the, party claiming indemnity has not been guilty of any fault except ", technically or constructively, as where an innocent master is held to r respond for the tort of his servant acting within the scоpe of his em- r ployment; or, 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. Yery familiar illustrations of the second class are found in cases of rеcovery against municipalities for obstructions to the 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, and the latter the negative tort of neglect to аct upon notice express or implied.” Gregg v. Wilmington, 155 N. C., p. 24 and cases cited.
In cases like the one now being considered — as between the joint tort-feasors — it was said in Dillon v. Raleigh, 124 N. C., p. 187: “The question of primаry and secondary liability is for the offending parties to adjust between themselves. The injured party shall have his remedy against either as they fail undеr the rule as to joint tort-feasors.” Gregg v. Wilmington, supra.
C. S., 602, is as follows: “Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several *615 defendants; and it may determine tbe ultimate rights of the parties on each side, as between themselves.” 2. “It may grant to the defendant any affirmative relief to which he may be entitled.”
31 Oye., pp. 223-4 says: “In the absence of such an express authority, the practice of allowing cross complaints to be filed against codefendants in analogy to the Cross bill of the chancery practice has been sаnctioned by the courts in The Code states generally as a means of effectuating the provision ordinarily made in The Codes, that the judgment rеndered may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves. A cross action by a defendant against a codefendant or third party must be in reference to the claim made by plaintiff and based upon an adjustment of that claim. Independent and unrelated causes of action cannot be litigated by cross actions.”
Smith, C. J.,
in
Hulbert v. Douglas,
Wright contends, with some force of reasoning, that plaintiff does not sue him and refuses to makе any complaint against him; that there is neither in the complaint nor answer of defendant any allegations of negligence against him. That plaintiff refuses to charge Wright with negligence, and says: “C. S., 508, provides that The only pleading on the part of the defendant is either a demurrer or аn answer.’ Section 511 provides that ‘a defendant may demur to the complaint when it appears upon the face thereof . . . that the complaint does not state facts sufficient to constitute a- cause of action.’ ”
O. S., 602, must be construed in connection with sections 508 and 511. Thе complaint of plaintiff is for actionable negligence against the city of Greensboro. The answer denies liability, but says if it is liable that Wright is primarily liable, that the city’s negligence was secondary and Wright’s primary. This makes' Wright related with plaintiff’s claim and comes within the cross-action rule. Wright cannot be heard, under such facts and circumstances, to take advantage of plaintiff’s refusal to mulct him. The city has the right that the primary аnd secondary liability be settled in this action. The city becomes the movant, its *616 claim is founded, related and connected with, the subject-mattеr between the plaintiff and the city and Wright. This is the foundation of the cross action. If Wright, from the complaint and answer, is not sufficiently informed as to thе details, he can, under C. S., 534, ask for a bill of particulars. Power Co. v. Elizabeth City, 188 N. C., p. 285. Our Code, C. S., 535, says: “In the construction of'a pleading for the purpose of determining its effect its allegations shall be'liberally construed with a view to substantial justice between the parties.”
In the
Gregg case, supra,
p. 22, it is said: “If she had sued the city alone, а question might have arisen as to whether it would be proper to make Woolvin a party, at the request of the city and against the plaintiff’s consent, even if thereby the entire controversy could be settled in one action. ” In the
Gregg case, supra,
both the city of Wilmington and James F. Woolvin were sued. In
Guthrie v. Durham,
We think the answer of the city of Greensboro practically the same as set up> by the cities of Wilmington and Durham in the cases, supra. Courts, under thе liberal practice to avoid multiplicity of actions, and where the rights of parties are not prejudiced and where substantial justice can be done between the parties, hold this should be done in one and the same action. We can see no- hardship that will comе to Wright from this. If he was not compelled to defend in this action, and plaintiff should recover against the defendant, he would have to defend under the law of primary and secondary liability in an independent action.
For the reasons given the demurrer is overruled.
Reversed.