Bowman v. City of Greensboro

• Decision Date: 02 December 1925
• Docket Number: 385.
• Parties: BOWMAN v. CITY OF GREENSBORO.
• Court: North Carolina Supreme Court

130 S.E. 502

190 N.C. 611

BOWMAN v. CITY OF GREENSBORO.

No. 385.

Supreme Court of North Carolina

December 2, 1925

Appeal from Superior Court, Guilford County; McElroy, Judge.

Action by J. F. Bowman against the City of Greensboro, in which, on motion of defendant, C. G. Wright was made a party defendant. From a judgment sustaining Wright's demurrer, the City appeals. Reversed.

Party injured by concurring negligence of two tort-feasors may maintain joint or several suit against tort-feasors.

Relevant facts: The plaintiff brought an action against the defendant and alleged:

"That on the 20th day of April, 1924, the plaintiff was walking northwardly upon the sidewalk of the west side of North Elm street in the city limits of Greensboro, and was only a short distance from the city hall, when suddenly a large limb, some 3 or 5 inches in diameter and 10 to 15 feet long, fell from a tree in close proximity to said sidewalk a distance of about 50 feet, and struck the plaintiff a severe blow on the head, knocking him unconscious," etc. "* * * That on or about the ______ day of February, 1924, Greensboro and the surrounding country was visited by a terrific sleet. That many trees were broken down and the limbs of others fell to the ground on account of the weight of the ice and sleet; but that still other large limbs, although broken or nearly broken from said trees, were left hanging, their support being the lower limbs of the tree. That the particular tree from which the limb herein complained of was broken was within sight from the windows of the police department of the city of Greensboro, and only about 200 feet or more from the city hall. That the said city of Greensboro, through its officers and agents, knew or by the exercise of reasonable care could have known of the dangerous condition resulting from the large limbs hanging in said tree directly over the sidewalk of Greensboro's main thoroughfare. * * * And that the negligence of the said city of Greensboro, in permitting the said limb to hang in such tree, for so long a period of time, and resulting in its fall upon the plaintiff, as aforesaid, was the direct and proximate cause of the plaintiff's injury; and that said city failed to exercise reasonable care to discover the defects resulting in the plaintiff's injury, or, if it knew of such condition, was guilty of gross negligence in not remedying the same. That said limb was easily observable and was or could easily have been seen by the officers, agents, and servants of the defendant."

The defendant in its answer said:

"That it is admitted that on or about the 20th day of April, 1924, plaintiff, while walking northwardly upon or near the west sidewalk of North Elm street, was struck by a falling limb, and injured thereby; but it is expressly denied that the tree from which such limb fell was standing within the street and sidewalk limits, and it is expressly denied that before such limb fell it projected over the street or sidewalk, or any part thereof. * * * It is admitted that the tree from which the limb that injured plaintiff fell was within sight of the city hall and about 200 feet therefrom."

Defendant denied all other allegations, and for a further defense avers:

"That at the time of the alleged injury to plaintiff, C. G. Wright was the owner and in possession of the lot on which stood the tree mentioned in the complaint; that if any injury was caused the plaintiff by the falling of a limb from said tree, the defendant is not liable in damages therefor; or if the defendant is in any manner liable to plaintiff by reason of the matters alleged in the complaint the defendant, city of Greensboro, is only secondarily liable, and that the said C. G. Wright is primarily liable therefor; and that if the plaintiff should recover of the defendant in this action, the defendant would be entitled thereby to maintain an action against and to recover from the said C. G. Wright."

Defendant prays:

"(a) That C. G. Wright be made a party defendant in this action; (b) that an issue as to primary liability as between the defendant, city of Greensboro, and the said C. G. Wright, be submitted to the jury; and (c) that the defendant, city of Greensboro, go hence without day and that it recover its costs, to be taxed by the clerk."

Upon notice being served on C. G. Wright, he appeared and the court below made the following order:

"It is ordered that C. G. Wright be and he is hereby made a party defendant in this action. It is further ordered that summons be served on C. G. Wright, unless service is accepted by him, such summons to be returnable the 1st day of April, 1925; that on or before the 1st day of April, 1925, the plaintiff, if he desires, may file a new or amended complaint herein; that within 20 days from the 1st day of April, 1925, C. G. Wright shall file his demurrer or answer; and that if the plaintiff files an amended complaint on or before the 1st day of April, 1925, the defendant city of Greensboro may, within 20 days thereafter, file an amended answer."

C. G. Wright made no exception to this order. The plaintiff did not file an amended complaint, as he was allowed to do, but Wright filed a demurrer as follows:

"That on or about the ______ day of March, 1925, after the complaint in said cause had been filed, defendant, city of Greensboro, filed its answer and obtained an order of the court making said C. G. Wright a party defendant and ordering that summons be served on him returnable the 1st day of April, and granting leave to plaintiff on or before said 1st day of April to file a new or amended complaint and granting leave to C. G. Wright to demur or answer within 20 days from said 1st day of April; that no amended complaint has been filed in said cause by plaintiff; and that the complaint heretofore filed by plaintiff sets up no cause of action against C. G. Wright and contains no prayer for relief as to him."

The court below rendered the following judgment:

"This cause coming on to be heard at May term, 1925, of Guilford superior court before the Hon. P. A. McElroy, judge presiding, upon the demurrer filed therein by the defendant, C. G. Wright, who was heretofore made a party defendant at the instance and upon the motion of defendant city of Greensboro, it is now, after consideration of and hearing argument upon said demurrer, considered, ordered, and adjudged that it be and it is hereby sustained." To the judgment sustaining the demurrer, the city of Greensboro excepted, assigned error, and appealed to the Supreme Court.

T. Bernard Wright and Bynum, Hobgood & Alderman, all of Greensboro, for C. G. Wright.

Fentress & Moseley, of Greensboro, for City of Greensboro.

CLARKSON J.

It is a well-established rule that a party injured can sue any or all joint tort-feasors for actionable negligence. As a general rule there can be no contribution or indemnity among mere tort-feasors. This rigor of the rule is modified in two classes of cases:

"Where the party claiming indemnity has not been guilty of any fault except technically or constructively, as where an innocent master is held to respond for the tort of his servant acting within the scope of his employment; or where both parties have been in fault, but not in the same fault, towards the party injured, and the fault of the party from whom indemnity is claimed was the primary and

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