Evans v. Johnson Et El
| Decision Date | 23 May 1945 |
| Docket Number | No. 668.,668. |
| Citation | 34 S.E.2d 73,225 N.C. 238 |
| Court | North Carolina Supreme Court |
| Parties | EVANS . v. JOHNSON et el. |
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Appeal from Superior Court, Guilford County; J. H. Clement, Judge.
Action by William R. Evans against D. Talmage Johnson, trading as Johnson Motor Company, and Banner Shoe to recover for injuries sustained in collision between plaintiff's automobile and an automobile operated by defendants, wherein defendants cross-complained against H. Jerome Johnson, plaintiff's driver, to establish his liability for contribution as a joint tort-feasor. From a judgment overruling the demurrer of H. Jerome Johnson to the cross-complaint, he appeals.
Reversed.
Defendant H. Jerome Johnson demurred to the cross-complaint of his co-defendants wherein they sought to establish his liability for contribution as a joint tortfeasor.
The plaintiff Evans had alleged a cause of action against defendants D. Talmage Johnson and Banner Shoe for damages for injuries resulting from the negligence of these defendants in the operation of an automobile which collided with plaintiff's automobile. Plaintiff alleged he was at the time a passenger in his automobile which he owned and which was being driven by H. Jerome Johnson.
In their answer to the complaint defendants D. Talmage Johnson and Banner Shoe denied the allegations of negligence on their part, and alleged that plaintiff's automobile was at the time being driven by H. Jerome Johnson at a high, careless and illegal rate of speed; that H. Jerome Johnson was acting as agent for the plaintiff and at the time was acting in the course and scope of his agency; that the negligent acts of H. Jerome Johnson are imputed to the plaintiff and constitute the sole proximate cause of plaintiff's injury; and that if the answering defendants were negligent as alleged in the complaint, the negligent conduct of H. Jerome Johnson, plaintiff's agent, constituted a proximate contributing cause of plaintiff's injury which was pleaded in bar.
The answering defendants further averred that if they were in any respectnegligent as alleged in the complaint, proximately causing plaintiff's injury, the negligence of H. Jerome Johnson was also a proximate cause of plaintiff's injury, and that he was and is jointly and concurrently liable with them to the plaintiff, and they ask that his liability be determined in this action.
On the answering defendants' motion, H. Jerome Johnson was made party defendant, and demurred to the cross-complaint on the ground that sufficient facts were not therein set out to enable his co-defendants to maintain action against him for the establishment of contingent liability for contribution as a joint tortfeasor.
The demurrer of defendant H. Jerome Johnson was overruled, and he appealed.
Benj. T. Ward, of Greensboro, for appellant.
Armistead W. Sapp, of Greensboro, for appellees.
The question presented by this appeal relates only to the defendants' pleadings. The sufficiency of the answer of defendants D. Talmage Johnson and Banner Shoe to constitute a valid cross-action against H. Jerome Johnson to determine his contingent liability for contribution as a joint tort-feasor is challenged by demurrer.
The right of a defendant sued in tort to bring into the action another joint tort-feasor and upon sufficient plea to maintain his cross-action against him for the purpose of determining his contingent liability for contribution is given by statute, G.S. § 1-240, and upheld by numerous decisions of this Court. Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335; ...
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