244 N.C. 17 | N.C. | 1956
Whether we say this is an action for damages resulting from a continuing trespass or for the maintenance of a nuisance or accord it some other name is immaterial. Irrespective of the nomenclature used, it is in essence an action in tort for the wrongful damage to and taking of the land of plaintiffs, without compensation, for private gain.
We have here a novel situation. The plaintiffs have not sued either Wilson or Southern. They were brought in as additional parties defendant under G.S. 1-240 so that Hassett may enforce its right of contribution in the event plaintiffs recover from it. Yet the plaintiffs find themselves booted out of court on the motion of Wilson.
It is true plaintiffs, in their reply, reassert against Wilson and Southern the facts alleged against Hassett and state that they will amend their complaint so as to include Wilson and Southern as defendants in their action. Even so, the reply does not constitute an attempt to state a cause of action as against them.
The function of a reply is to deny such new matter alleged in the answer or affirmative defenses as the plaintiff does not admit and to answer any cross action or complaint asserted by defendant. Plaintiffs’ cause of action must be alleged in the complaint. Spain v. Brown, 236 N.C. 355, 72 S.E. 2d 918.
As plaintiffs do not attempt to allege a cause of action against either Wilson or Southern, these defendants are, as to plaintiffs, strangers to the action which is not dismissible as to plaintiffs on any motion made by these defendants.
While it may sometimes be used by a defendant, ordinarily a motion for judgment on the pleadings is in essence a demurrer by plaintiff to the answer of the defendant. When the defendant admits the allegations, contained in the complaint but pleads new matter in defense, the plaintiff may challenge the sufficiency of the new matter by such motion. McGee v. Ledford, 238 N.C. 269, 77 S.E. 2d 638.
We are somewhat at a loss to comprehend the rationale underlying the judgments entered. We must assume that they were based on the theory that Hassett, Wilson, and Southern are not joint tortfeasors or that the affirmative .defenses pleaded are sufficient in law to defeat the action. Plaintiffs state a good cause of action, sufficient in substance and form,-and the allegations made in the various pleádings by way of further defense are not sufficient, on this record, to support the
What has already been said is perhaps sufficient to dispose of this appeal, but there are other questions raised which, no doubt, will arise again on a retrial. For that reason they should receive attention at this time.
On the facts alleged by plaintiffs and in the answer of the original defendant the three defendants are joint tortfeasors, for only one single and indivisible injury is alleged.
Concert of action is not a requisite of joint tortfeasorship. Moses v. Morganton, 192 N.C. 102, 133 S.E. 421; Lineberger v. Gastonia, supra; Stowe v. Gastonia, 231 N.C. 157, 56 S.E. 2d 413; McKinney v. Deneen, supra.
If the independent wrongful acts of two or more persons unite in producing a single indivisible injury, the parties are joint tortfeasors within the meaning of the law, and the injured party may sue only one or all the tortfeasors, as he may elect. Evans v. Johnson, 225 N.C. 238, 34 S.E. 2d 73; White v. Keller, 242 N.C. 97, 86 S.E. 2d 795; Bost v. Metcalfe, 219 N.C. 607, 14 S.E. 2d 648.
When the aggrieved party elects to sue only one, or less than all the tortfeasors, the original defendant or defendants may have the others made additional defendants under G.S. 1-240 for the purpose of enforcing contribution in the event the plaintiff recovers. Hobbs v. Goodman, 240 N.C. 192, 81 S.E. 2d 413; Wilson v. Massagee, 224 N.C. 705, 32 S.E. 2d 335; Hayes v. Wilmington, 239 N.C. 238, 79 S.E. 2d 792; Freeman v. Thompson, 216 N.C. 484, 5 S.E. 2d 434; Lackey v. Ry. Co., 219 N.C. 195; 13 S.E. 2d 234; Mangum v. Ry. Co., 210 N.C. 134, 185 S.E. 644; Potter v. Frosty Morn Meats, Inc., 242 N.C. 67, 86 S.E. 2d 780.
Applying the rule of liberal construction, as we are required to do in cases such as this, we are constrained to hold that the cross action alleged by Hassett is sufficient in substance and form to support an order making Wilson and Southern additional parties defendant under G.S. 1-240 for the purpose of enforcing contribution. While Hassett admits that it is washing sand, silt, and soil into South Toe River with its mining operation, it asserts that it is doing so as a matter of right. It further alleges, however, that if recovery is had against it, then Wilson and Southern are committing the same acts and that the silt and soil washed into South Toe River by it and them unite in causing the single injury complained of by the plaintiffs.
The statutory provisions relied on by Wilson and Southern are not sufficient to defeat either the plaintiffs’ cause of action or Hassett’s claim to contribution.
We do not at this time decide the question whether the covenant contained in the deed from plaintiffs to Mayberry, is sufficient to bar any claim against Mayberry or any other person claiming under him. We have searched the record in vain for any admission on the part of the plaintiffs that any one of the three defendants possesses a leasehold estate in the land of plaintiffs by mesne conveyances from Mayberry. Hence the plea of the covenant is an affirmative defense and must be established by proof before the court can make any intelligent and binding ruling on the question.
Since the questions raised on this appeal, both as to fact and law, will in all probability arise again on a rehearing, we refrain from any further or extended discussion of the legal questions presented by this appeal lest we by so doing prejudice either plaintiffs or defendants.
It follows from what has heretofore been said that the court committed error in entering judgment upon the pleadings and dismissing the action and in sustaining the demurrer entered. Both judgments must be
Reversed.
