Hayes v. City of Wilmington
79 S.E.2d 792
N.C.
1954
Check Treatment
Barnhill, J.

Defendant Cooper was entitled, if at all, to have the additional defendants made parties defendant under the statute which pеrmits contribution between joint tort-feasors, G.S. 1-240.

At common law no right of action for contribution existed between or among joint tort-feasors. The question could not-be raised either by independent suit, after judgment had been rendered against one of the joint tort-feasоrs, or in the original action by the party injured against one of them. The right is purely statutory, Hoft v. Mohn, 215 N.C. 397, 2 S.E. 2d 23; Lineberger v. Gastonia, 196 N.C. 445, 146 S.E. 79, and must be enforced in accord with the provisiоns of the statute, G.S. 1-240. Tarkington v. Printing Co., 230 N.C. 354, 53 S.E. 2d 269; Hunsucker v. Chair Co., 237 N.C. 559, 75 S.E. 2d 768; Godfrey v. Power Co., 223 N.C. 647, 27 S.E. 2d 736.

When a person has been injured through the concurring negligence of two or ‍​‌​‌‌​​‌​​‌‌‌​​​​‌‌‌​‌‌​​‌​‌‌‌​​​‌‌​​‌​​​‌‌‌​‌‌​‍more persons, he may sue one or all the joint tort-feasors at his option. Watts v. Lefler, 194 N.C. 671, 140 S.E. 435; Charnock v. Taylor, 223 N.C. 360, 26 S.E. 2d 911. In so far as he is concerned, the others are not necessary parties and he may not be compelled to bring them in. Charnock v. Taylor, supra. They may, however, be brought in by the original defendant on a cross complaint in which he alleges jоint tort-feasorship and his right to contribution in the event plaintiff recovers judgment against him. G.S. 1-240; Mangum v. Ry. Co., 210 N.C. 134, 185 S.E. 644; Freeman v. Thompson, 216 N.C. 484, 5 S.E. 2d 434; *243 Lackey v. Ry. Co., 219 N.C. 195, 13 S.E. 2d 234; Wilson v. Massagee, 224 N.C. 705, 32 S.E. 2d 335.

Therefore, to retain the additional defendants as parties to the pending action, it must be made to appear that Cooper has alleged a canse of action against them for contribution. Allegations of a cause of action which would entitle the plaintiff to recover will not suffice. Bost v. Metcalfe, 219 N.C. 607, 14 S.E. 2d 648; Freeman v. Thompson, supra; Charnock v. Taylor, supra. Thе original defendant has no cause of action for contribution unless the facts alleged ‍​‌​‌‌​​‌​​‌‌‌​​​​‌‌‌​‌‌​​‌​‌‌‌​​​‌‌​​‌​​​‌‌‌​‌‌​‍by him in his cross action are sufficient to mаke both of them liable to the plaintiff as joint tort-feasors. Bost v. Metcalfe, supra. “This is necessarily so for the very simple reason that one party cannot invoke either оf these rights (contribution or indemnity) against another party unless both of them are liable to the same person as joint tort-feasors.” Hunsucker v. Chair Co., supra.

The allegations of negligence contained in the cross action are summarized in the statement of facts. In short they are: (1) The installation of the gas pipes too near the surface of the street; (2) a failure to remove them or lower them to a proper depth after notice that excavation work on the street was contemplated; and (3) improper installation at the meter. Nowhere is it alleged that the negligence of the power company concurred with the negligence of Coоper in causing the death of the intestates. Instead, he alleges that the negligence of the power company was the sоle proximate cause of their injury and death. He does not pray for contribution. He makes no reference to the exрlosion or the resulting death of plaintiff's intestates or to his acts in relation thereto.

If we concede that Cooper has sufficiently alleged negligence on the part of the power company and that plaintiff will prove the acts of negligencе he alleges against Cooper (which Cooper does not even conditionally concede in his cross complaint), it is mаde 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. Riggs v. Motor Lines, 233 N.C. 160, 63 S.E. 2d 197; Smith v. Sink, 211 N.C. 725, 192 S.E. 108; McLaney v. Motor Freight, Inc., 236 N.C. 714, 74 S.E. 2d 36, and cases cited; Garner v. Pittman, 237 N.C. 328, 75 S.E. 2d 111.

The negligence, if any, of the power company was passive; that of defendant was active. Without the negligence of Cooper, the negligence of the powеr 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 intestаtes, or merely accelerate or divert the negligence of the power company. It broke the line of causatiоn, Riggs v. Motor Lines, supra, so that it cannot be said that the power company *244 could have reasonably foreseen the negligence of Cooper or that the two are joint tort-feasors.

Moreоver, 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. On insulated negligence see Shaw v. Barnard, 229 N.C. 713, 51 S.E. 2d 295; Murray v. R. R., 218 N.C. 392, 11 S.E. 2d 326; Warner v. Lazarus, 229 N.C. 27, 47 S.E. 2d 496; Bost v. Metcalfe, 219 N.C. 607, 14 S.E. 2d 648; Peoples v. Fulk, 220 N.C. 635, 18 S.E. 2d 147; Beaver v. China Grove, 222 N.C. 234, 22 S.E. 2d 434; and on primary and secondary liability see Bost v. Metcalfe, supra; Clothing Store v. Ellis Stone & Co., 233 N.C. 126, 63 S.E. 2d 118; and Westchester Lighting Co. v. Westchester County Small Estates Corp., 278 N.Y. 175, 15 N.E. 2d 567.

Cooper seeks to avail himself of the provisions of G.S. 1-240. In so doing, hе cannot rely upon any liability of the power company to plaintiff or borrow from the plaintiff or improve his legal status by leаning ‍​‌​‌‌​​‌​​‌‌‌​​​​‌‌‌​‌‌​​‌​‌‌‌​​​‌‌​​‌​​​‌‌‌​‌‌​‍upon his (plaintiff’s) cause of action. He must allege facts which, if proven, render the power company liable to him in the event plaintiff recovers on his causes of action. This he has failed to do. Charnock v. Taylor, supra; Canestrino v. Powell, 231 N.C. 190, 56 S.E. 2d 566.

It follows that Cooper’s cross action fails to state a cause of action for contribution.

In the absence of a cross action against a third party, made defendant оn motion of the original defendant, in which a cause of action for contribution is sufficiently alleged, the additional party is an unnecessary party to the action and may, on motion, have his name stricken from the pleadings.

When no cause of action is stated against a defendant, either in the complaint or in a cross action pleaded by another defendant, he is an unnecessary party and the inclusion of his name is mere surplusage. Sullivan v. Field, 118 N.C. 358.

A proper remedy is by motion to strike. Winders v. Southerland, 174 N.C. 235, 93 S.E. 726; Bank v. Gahagan, 210 N.C. 464, 187 S.E. 580; Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761; Worth v. Trust Co., 152 N.C. 242, 67 S.E. 590; Fleming v. Light Co., 229 N.C. 397, 50 S.E. 2d 45.

“The demurrer was properly overruled. At the most they would have been merely unnеcessary ‍​‌​‌‌​​‌​​‌‌‌​​​​‌‌‌​‌‌​​‌​‌‌‌​​​‌‌​​‌​​​‌‌‌​‌‌​‍parties . . . Such party has his remedy by motion to strike out his name.” Winders v. Southerland, supra.

We do not mean to say, however, that where there is an unsuсcessful attempt, either by the plaintiff or a defendant, to state a cause of action against an additional party defеndant, a demurrer will not lie.

*245 Tbe contention of tbe defendant Cooper tbat tbe bearing before Grady, E. J., constituted a review by one Superior Court Judge of tbe order or judgment of another Superior Court Judge and tbat, in effect, Grady, E. J., by bis judgment reversed tbe order of Carr, J., mаking appellees additional parties is untenable. Tbe additional defendants were made parties without notice and without а bearing, and they were entitled to their day in court.

Ordinarily one Superior Court Judge may not review tbe judgment of another Superior Court Judge. Davis v. Land Bank, 217 N.C. 145, 7 S.E. 2d 373; Veazey v. Durham, 231 N.C. 357, 57 S.E. 2d 377; Newton and Co. v. Manufacturing Co., 206 N.C. 533, 174 S.E. 449; Fleming v. Light Co., supra. This rule, however, does not apply to orders making additional parties and other orders entered without notice or bearing. Tbe rule does not and cannot abrogate the rights guaranteed by tbe due process clause of tbe Constitution.

Tbe judgment entered in tbe court below is

Affirmed.