Bell v. Lacey

• Decision Date: 17 September 1958
• Docket Number: No. 97,97
• Citation: 104 S.E.2d 833,248 N.C. 703
• Court: North Carolina Supreme Court
• Parties: Richard Charles BELL v. Miss Lucy LACEY, Larry Cecil Christopher and Vincent Walter Christopher.

Page 833

104 S.E.2d 833

248 N.C. 703

Richard Charles BELL v. Miss Lucy LACEY, Larry Cecil Christopher and Vincent Walter Christopher.

No. 97

Supreme Court of North Carolina.

Sept. 17, 1958

Williams & Williams, Asheville, for appellants.

Harkins, Van Winkle, Walton & Buck, Asheville, for appellee.

DENNY, Justice.

This appeal presents for determination this question: May one or more of the original defendants in a tort action, growing out of an automobile collision, maintain a cross-action against an original codefendant for damages arising out of the same collision? According to the decisions of this Court the answer must be in the negative.

At common law, no right of contribution existed between or among joint tort-feasors who were in pari delicto. The right is purely statutory with us and its use necessarily depends upon the terms and provisions of the statute. G.S. § 1-240; Potter v. Frosty Morn Meats, Inc., 242 N.C. 67, 86 S.E.2d 780; Tarkington v. Rock Hill Printing & Finishing Co., 230 N.C. 354, 53 S.E.2d 269, 11 A.L.R.2d 221; Evans v. Johnson, 225 N.C. 238, 34 S.E.2d 73; Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335, 156 A.L.R. 922; Godfrey v. Tidewater Power Co., 223 N.C. 647, 27 S.E.2d 736, 149 A.L.R. 1183. The purpose and intent of the statute is to permit defendants in tort actions to litigate mutual contingent liabilities before they have accrued. Evans v. Johnson, supra; Lackey v. Southern R. R. Co., 219 N.C. 195, 13 S.E.2d 234; Mangum v. Southern R. R. Co., 210 N.C. 134, 185 S.E. 644. The provision for this procedure was made so that all matters in controversy growing out of the same subject of action may be settled in one action. Read v. Young Roofing Co., 234 N.C. 273, 66 S.E.2d 821; Evans v. Johnson, supra; Freeman v. Thompson, 216 N.C. 484, 5 S.E.2d 434, and such procedure is permissible, although a plaintiff in the action may be delayed in securing his remedy. Montgomery v. Blades, 217 N.C. 654, 9 S.E.2d 397.

When negligence is joint and several, the injured party may elect to sue either of the joint tort-feasors separately, or any or all of them together. Jones v. Otis Elevator Co., 231 N.C. 285, 56 S.E.2d 684; Godfrey v. Tidewater Power Co., supra; Charnock v. Taylor, 223 N.C. 360, 26 S.E.2d 911, 148 A.L.R. 1126; Watts v. Lefler, 194 N.C. 671, 140 S.E. 435; Raulf v. Elizabeth City Light & Power Co., 176 N.C. 691, 97 S.E. 236; Hipp v. Farrell, 169 N.C. 551, 86 S.E. 570.

When a plaintiff elects to sue one or more joint tort-feasors, but not all of them, the others are not necessary parties and plaintiff cannot be compelled to pursue them. Denny v. Coleman, 245 N.C. 90, 95 S.E.2d 352. Nor can an original defendant in such action use G.S. § 1-240 to compel plaintiff to join issue with a defendant he has not elected to sue. In such case, if an original defendant avails himself of the provisions of the statute for contribution, he cannot rely upon any liability of the party he has brought in to the original plaintiff, but must recover, if at all, upon the liability of such party to him. Charnock v. Taylor, supra.

This Court has uniformly held that where all the joint tort-feasors are brought in by a plaintiff and a cause of action is stated against all of them, such defendants under our statutes, G.S. § 1-137 and G.S. § 1-138, are permitted to set up in their respective answers as many defenses and counterclaims as they may have arising out of the causes of action set out in the complaint. However, they are not allowed to set up and maintain cross-actions as between themselves which involve affirmative relief not germane to the plaintiff's action. Wrenn v. Graham, 236 N.C. 719, 74 S.E.2d 232. This is so, notwithstanding the fact that the defendants' claim for damages may have arisen out of the same set of circumstances upon which the plaintiff's action is bottomed.

The cross-action sought to be maintained by the appellants herein is not germane to the plaintiff's cause of action, and in no aspect is it essential to a complete determination of the plaintiff's cause of action.

In Montgomery v. Blades, supra [217 N.C. 654, 9 S.E.2d 398], Devin, J. (later C. J.), in speaking for the Court said:

'The general rule seems to have been established by the decisions of this court that one defendant, jointly sued with others, may not be permitted to set up in the answer a cross-action not germane to the plaintiff's action. A cause of action arising between defendants not founded upon or necessarily connected with the subject matter and purpose of the plaintiff's action should not be engrafted upon the action which the plaintiff has instituted. In order that a cross-action between defendants may be properly considered as a part of the main action, it must be founded upon and connected with the subject matter in litigation between the plaintiff and the defendants (citing numerous authorities).

'Section 602 of the Consolidated Statutes (now G.S. § 1-222) provides that 'judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may determine the ultimate rights of the parties on each side, as between themselves.' This permits the determination of questions of primary and secondary liability between joint tortfeasors, but it may not be understood to authorize the consideration of cross-actions between defendants as to matters not connected with the subject of the plaintiff's action.'

The decision in Montgomery v. Blades, supra, with respect to cross-actions, has been upheld and cited with approval in many cases, among them being, Schnepp v. Richardson, 222 N.C. 228, 22 S.E.2d 555; Moore v. Massengill, 227 N.C. 244, 41 S.E.2d 655, 170 A.L.R. 147; Horton v. Perry, 229 N.C. 319, 49 S.E.2d 734; Fleming v. Carolina Power & Light Co., 229...