Thе plaintiff seeks to recover compensation for personal injuries she sustained when an advertising sign attached to the building by the Goodmans while they were in exclusive control thereof fell and struck her as she was passing in front of the building. The defendants Goodman seek to recover over against the defendants trustees on the allegation that the plaintiff was injured whеn a part of the metal cover of an awning attached to the building prior to their (the Good-mans’) first occupancy of the building, fell and struck plаintiff. Thus plaintiff seeks to recover on one cause of action while defendants Goodman seek contribution from, or to recover over in full against, the trustees upon an entirely different state of facts. Under these circumstances the provisions of G.S. 1-240 are not available to the оriginal defendants.
The purpose of the Act, G.S. 1-240, is to permit a defendant whо has been sued in tort to bring into the action, for the purpose of enfоrcing contribution, a joint tort-feasor whom the plaintiff could have joined as party defendant in the first instance.
Wilson v. Massagee,
The cause of action as stated in the complaint is the subject matter of the controversy. Defendаnts are not permitted to litigate in plaintiff’s action differences which аre not directly related thereto. To entitle the original defendant in а tort action to have some third party made an additional party defendant under G.S. 1-240 to enforce contribution, it must be made to appeаr from the facts alleged in the cross action that the defendant and such third person are tort-feasors in respect of the subject of controversy, jointly liable to the plaintiff for the particular wrong alleged in the complaint. The facts must be such that the plaintiff, had
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be desired so to dо, could bave joined sucb third party as defendant in tbe action.
Wilson v. Massagee, supra; Evans v. Johnson,
Tbe plаintiff alleges sbe was injured wben an advertising sign erected by tbe Goodmans fell and struck ber as sbe walked along tbe sidewalk in front of tbe building occupied by thеm as tenants. This sign was erected by tbe Goodmans for their own use and benefit while they were in exclusive possession of tbe premises. Negligence in tbе erection and maintenance of this sign is tbe heart of ber claim to compensation for personal injuries.
If tbe sign was negligently erected оr maintained, that negligence was tbe negligence of tbe Goodmans аlone. In no sense were the trustees joint tort-feasors in respect thereto.
Garrett v. Garrett,
From what has been said heretofore, it clearly appears that tbe doctrine of primary and secondary liability has no apрlication. Even if we concede that tbe doctrine applies, tbе Goodmans are tbe ones who were actively negligent and created tbe situation which caused tbe plaintiff’s injuries.
But tbe original defendants suggest that plaintiff may now amend ber complaint and allege that it was tbe top or cover of tbe awning, and not tbe sign, that fell and injured ber. They therefore urge us to render decision on this appeal as though sbe bad so allеged in tbe first instance. But this we may not do. Skipper v. Yow, ante, 102. In tbe first place we must assume that plaintiff has alleged in good faith tbe facts as sbe understands them to be. In tbe second place what we might now say, in anticipation of an amendment, respecting tbe interesting questions discussed in tbe briefs would be dicta in which we should not — but sometimes do — indulge.
Tbe judgment entered in tbe court below is
Affirmed.