Appellants assign as error tbe rulings of tbe trial court (1) in denying their motion to strike, as irrelevant, immaterial and prepu-cial, tbe “third further answer and defensе” which by permission of court was filed by tbe original defendants, McIntyre and Adcock, as an amendment to their answer, and (2) in overruling their demurrer to tbe “third further аnswer and defense” of original defendants, for tbat tbe matters averred do not constitute an adjudication tbat tbe negligence of Mrs. Austin was one оf tbe proximate causes of tbe death of plaintiff’s intestate, Mrs. Hargrove, and, hence, are not res judicata to tbat effect.
However, in tbe light of tbe provisions of tbe stаtute G.S. 1-240, formerly C.S. 618 as amended, and of pertinent decisions of this Court, error in these respects is not made to appear.
It is provided by this statute, C.S. 1-240, tbat in an action arising out of a joint tort wherein judgment may be rendered against two or more persons or corporations, who are jointly and severally liable, and only one, or not all of the joint tort-feasors are made parties defendant, those tort-feasors made parties defendant may, at any time before judgment is obtained, upon motion, have tbe other such joint tort-feasors brought in and made parties defendant in ordеr to determine and enforce contribution.
Freeman v. Thompson,
In the Evans case, supra, opinion by Devin, J., now Chief Justice, decisions of this Court in reference to provisions of G.S. 1-240 are summarized in this manner: “Tbe purpose of tbе statute is to permit defendants in tort actions to litigate mutual contingent liabilities before they *153 have accrued ... so that all matters in controvеrsy growing out of the same subject matter may be settled in one action . . . though the plaintiff in the action may be thus delayed in securing his remedy.”
Moreover, this Court has held that where a plaintiff in a tort action does not demand any relief against an alleged joint tort-feasor brought into the action, оn motion of the original defendant, pursuant to the provisions of G.S. 1-240, the burden is upon the original defendant to prove his cross-action for contributiоn. Pascal v. Transit Co., supra.
And in the case in hand, the original defendants, McIntyre and Adcock, having invoked the aid of this statute, G.S. 1-240, for the purpose of determining and enforcing contribution, as between them and Mrs. Austin, have the burden of alleging and proving facts constituting her a joint tort-feasor with them in respect to the collision between the truck and trailer owned by defendant McIntyre and operated by defendant Adcock, and the automobile operated by Mrs. Austin in which it is allegеd by plaintiff Mrs. Hargrove was then a passenger and sustained injuries resulting in death. Such controversy is between the original defendants, McIntyre and Adcock, оn one hand, and Mrs. Austin on the other, authorized to be injected in the plaintiff’s action, to the end that settlement of the whole controversy be had in а single action.
Gaffney v. Casualty Co.,
In the light of this statute, G.S. 1-240, and these principles applied to the factual situation in hand, it would seem that the matters sought to be stricken аre both material and relevant to the cross-action of the original defendants against Mrs. Austin.
Therefore, admitting the truth of the facts averred in the “third furthеr answer and defense,” pleaded by the original defendants, as is done when the sufficiency of a pleading to state a cause of actiоn is challenged by demurrer, this question arises: Is the judgment in the Scotland County actions determinative of the question as to whether or not Mrs. Austin was a joint tort-feаsor with McIntyre and Adcock in respect to the same collision there involved when it becomes the subject matter of another tort action instituted by a plaintiff who was not a party to the Scotland County case ? Bearing in mind that the controversy here as to right to contribution, within the provisions of G.S. 1-240, is one between McIntyre and Adcock, on one hand, and Mrs. Austin on the other, who were the parties to the Scotland County cases, settled principles of law dictate an affirmative answer. See
Armfield v. Moore,
Generally to constitute a judgment an estoppel there must be identity of parties, of subjеct matter, and of issues. And it is elementary that the estoppel of a judgment must be mutual, and “ordinarily the rule is that only parties and privies are bound by a judgmеnt.” See Leary v. Land Bank, supra.
Moreover, in Current v. Webb, supra, the Court, quoting from 2 Freeman on Judgments, Sec. 670, states: “ ‘There is no doubt that a final judgment or decree necessarily affirming the existence of аny fact is conclusive upon the parties or their privies, wherever the existence of that fact is again in issue between them, not only when the subject matter is the same, but when the point comes incidentally in question in relation to a different matter, in the same or any other court.’ ”
And, continuing in the Current case, “ ‘It is not necessary that precisely the same parties were plaintiffs and defendants in the two suits; provided the same subject in controversy, between two or mоre of the parties, plaintiffs and defendants in the two suits respectively, has been in the former suit directly in issue, and decided.’ ” See other cases сited, including Leary v. Land Bank, supra.
And in the Tarkington case, supra, Stacy, C. J., speaking in respect to a similar situation, stated the principle as follows: “The prior suit as between the then parties litigant determined the question whether the driver of the automobile was contributorily negligent or a joint tort-feasor with the owner and driver of the truck in bringing about the collision. Hence, as between the parties there litigant, this matter would seem to be res judicata ” citing Cannon v. Cannon, supra.
And in Herring v. Coach Co., supra, another case similar to the one in hand, opinion by Devin, J., it is declared: “The rule seems to have been established that when in а cross-action by the defendant against an additional defendant for contribution as joint tort-feasor, it appears that in a previous action between them it had been determined that the additional defendant had not been contributorily negligent, the question could not again be raised in а suit between the same parties,” citing the Tarkington, Cannon and Current cases, supra.
Conversely, the rule applies to the factual situation instantly presented where in the previous suit it has been determined that the additional defendant had been contributorily negligent, the question may not again be raised in a controversy between the same parties.
Finally, while the “third further answer and defense” under consideration expressly relates to Mrs. James H. Austin, and not to James H.
*155
Austin, appellants in tbеir brief call attention to the fact that McIntyre and Adcock in their joint answer aver that James H. Austin was the owner of the automobile and responsible under the family purpose doctrine. And it is asserted that “as a party to the matters in question for the first time he is clearly entitled to have a full trial оf all matters alleged,” and that “the allegations of the Scotland cases as to him are prejudicial to his defense of the case and are no bar to his right to plead such defenses as he has.” As to this, it may be conceded that the question is not presented by this appeal, but if it were presented, the position taken by appellants may not be conceded to be tenable. The family purpose doctrine with respect to automobiles obtains in North Carolina. See
Ewing v. Thompson,
Affirmed.