26 S.E.2d 911 | N.C. | 1943
The plaintiff, Mrs. Charnock, brought this action against the defendant, Forrest C. Taylor, to recover damages for an injury alleged to have *361 been sustained through the negligence of the said Taylor in connection with the collision of an automobile in which plaintiff was riding in the city of Bristol, Tennessee.
The defendant answered, denying negligence and alleging that plaintiff received her injury, if at all, through the sole negligence of the ET WNC Transportation Company, a Tennessee corporation; but still denying his negligence, alleges that if in truth and fact he was negligent, the said ET WNC Transportation Company was, in this respect, a joint tort-feasor with him in negligently causing plaintiff's injury, and asked for contribution in case recovery was had against him.
Seeking to avail himself of the provisions of C. S., 618, as amended, Taylor filed a petition to bring in the Transportation Company as a party, which was allowed by the clerk. Service was made upon the Company in this State.
Since the complaint of Mrs. Charnock contained no allegation of negligence against the Transportation Company, that defendant demurred to the complaint as not stating a cause of action against it. At the same time it demurred to the answer of Taylor, which asked affirmative relief, as not stating a cause of action against this defendant, for that in this respect the Tennessee law applies and governs, and this does not recognize contribution between joint tort-feasors, or permit an action by one joint tort-feasor against another to recover contribution.
The demurrer to the answer of Taylor was sustained, and the defendant Taylor appealed.
Whether for reasons of comity (Bond v. Hume,
The rule is followed with practical uniformity in its particular application to actions founded in tort: Matters affecting the substantial rights of the parties are determined by the lex loci delicti commissi, and remedial, or procedural, rights are determined by the law of the forum.
Within this rule are questions relating to the existence or non-existence of a cause of action — that is, whether the circumstances out of which the litigation arose created or gave rise to such right. This is stated concisely in 15 C. J. S., Conflict of Laws, sec. 12, as follows: "The lex loci delicti governs the substantial aspects of torts, and determines whether a right of action in tort has been created and its extent." In Restatement, Conflict of Laws, sec. 378, the American Law Institute expresses the rule: "The law of the place of wrong determines whether a person has sustained a legal injury." Young v. Masci,
"`If under the lex loci there is a right of action, comity permits it to be prosecuted in another jurisdiction; but if under the lex loci no right of action is created or exists, then it exists nowhere and can be prosecuted in no jurisdiction.' Pender v. Machine Co.,
The case at bar is novel only in one aspect. No case under similar conflict of laws has been brought to our attention involving a demand for contribution between joint tort-feasors. But the rule is broad enough to cover that situation, since such demand would not arise except as it grew out of the tortious transaction and the relation thus brought about between the parties.
With respect to legal liability for contribution between joint tort-feasors, the laws of North Carolina and the laws of Tennessee, where admittedly the collision of the vehicles and injury of plaintiff occurred, are at variance. Under the common law there is no right to an action by one joint tort-feasor to enforce contribution from another. Lineberger v.Gastonia,
The effect of section 618 of the Consolidated Statutes, as amended, was to give a right or cause of action to a joint tort-feasor against his fellow participant in the negligent act to enforce contribution — this right to be asserted in any action brought to recover for the injury, or independently after judgment has been taken; and the Act provides machinery for bringing such joint tort-feasor into the case.
The liability of joint tort-feasors to one who has sustained an injury through their common negligence is joint and several; and the injured party may sue either of them separately or any or all of them together, at his option. Raulf v. Light Co.,
Demurrer was properly sustained, and the judgment is
Affirmed.