266 N.C. 404 | N.C. | 1966
The facts here involved were stated and the pleadings as originally drawn were analyzed by this Court when the case was here on demurrer at the Fall Term, 1962. The decision sustaining the demurrer, and granting leave to amend, is reported in 258 N.C. 632, 129 S.E. 2d 222. Only a few additional facts, the amended complaint, and the result of the second hearing need be discussed in order to complete the legal picture as the record now presents it.
At no time has there been a court adjudication of an issue of primary and secondary liability as between H. F. Garner and W. C. Garner. In their joint answer to the original suit instituted against both by Reece Trotter, the Garners admitted that the truck involved in the accident was owned by W. C. Garner and was driven at the time of the accident by H. F. Garner. Trotter’s judgment for $35,-
By the action as originally brought, the assignee of W. C. Garner sought to recover from the insurer of H. F. Garner the sum of $10,000.00 upon the ground that W. C. Garner, though secondarily liable to Trotter, had paid the sum of $10,000.00 to Trotter and that W. C. Garner was entitled to reimbursement because H. F. Garner was primarily liable.
Justice Moore’s opinion sustained the demurrer to the original complaint upon this ground: “It does not appear from the complaint that it has been judicially established that W. C. Garner is entitled to indemnity from H. F. Garner. The policy issued by Nationwide provides that ‘No action shall lie against the Company unless, as a condition precedent thereto, . . . the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the insured, the claimant and the Company.’ . . . The question of primary and secondary liability is for the offending parties to adjust between themselves. . . . The complaint in the present action is defective in that it does not allege, as a condition precedent to the right to maintain'the action; that the right to indemnity has been determined according to the provisions of the policy.”
By proper allegations and issues the Garners could have had determined in Trotter’s action the question of their primary and secondary liability. Davis v. Radford, 233 N.C. 283, 63 S.E. 2d 822. This they did not do. Or, after paying the judgment to Trotter, W. C. Garner could have brought suit against H. F. Garner, alleging payment of the debt for which the latter was primarily liable, and recover judgment for the amount paid. After recovering judgment, W. C. Garner, or his assignee, could have required H. F. Garner’s insured, Nationwide, to discharge the insured’s liability.
Justice Moore’s opinion is the law of the case to this extent: The complaint in a cause of action by W. C. Garner or his trustee against Nationwide must allege the issue of H. F. Garner’s liability to W. C. Garner has been settled by judgment after trial, or that liability has been stipulated in writing, signed by the claimant, by H. F. Garner, and by Nationwide. There is no claim that Nationwide has signed any written agreement. Flence the trustee must allege the issue of H. F. Garner’s primary liability has been settled by a judgment after trial.
In the trial before Judge Gwyn, H. F. Garner was not a party. His liability to W. C. Garner could not be adjudicated. In this action by the assignee of W. C. Garner against H. F. Garner’s insurer the amended complaint is no improvement over the original.
In the trial before Judge Gwyn the court should have entered judgment sustaining the defendant’s demurrer on the second ground stated therein. The judgment overruling the demurrer is
Reversed.