Freeman v. Thompson

• Decision Date: 08 November 1939
• Docket Number: 378.
• Citation: 5 S.E.2d 434,216 N.C. 484
• Parties: FREEMAN v. THOMPSON.
• Court: North Carolina Supreme Court

5 S.E.2d 434

216 N.C. 484

FREEMAN v. THOMPSON.

No. 378.

Supreme Court of North Carolina

November 8, 1939

This is an action for actionable negligence. The plaintiff seeks to recover damages against the defendant in this action alleging negligence on the part of the defendant in the operation of his automobile, and the defendant denies negligence, and sets forth facts which, he alleges constitute negligence on the part of John Campbell, driver of the car in which the plaintiff was riding. In his prayer for relief, the defendant asks that John Campbell be made a party defendant in the action under the provisions of Section 618 of the North Carolina Code, 1935 (Michie). Upon hearing, the Clerk of the Superior Court of Iredell County entered an order in the cause on February 28, 1939, making John Campbell a party defendant to the action. From this order the plaintiff appealed to the Superior Court. A hearing upon the appeal was heard before His Honor, Judge Bobbitt, at the March Term of the Iredell County Superior Court. At the conclusion of the arguments of counsel, an order was signed by Judge Bobbitt reversing the order signed by the Clerk of the Superior Court. To the signing of the order the defendant excepted, assigned error and appealed to the Supreme Court of North Carolina.

The other necessary facts will be set forth in the opinion.

Scott & Collier, of Statesville, for plaintiff.

Adams Dearman & Winberry, of Statesville, for defendant.

CLARKSON Justice.

N.C.Code 1935 (Michie), Sec. 618, in part, is as follows: "In all cases in the courts of this state wherein judgment has been or may hereafter be, rendered against two or more persons or corporations, who are jointly and severally liable for its payment either as joint obligors or joint tort-feasors, and the same has not been paid by all the judgment debtors by each paying his proportionate part thereof; if one of the judgment debtors shall pay the judgment creditor, either before or after execution has been issued, the amount due on said judgment, and shall, at the time of paying the same, demand that said judgment be transferred to a trustee for his benefit, it shall be the duty of the judgment creditor or his attorney to transfer without recourse such judgment to a trustee for the benefit of the judgment debtor paying the same; and a transfer of such judgment as herein contemplated shall have the effect of preserving the lien of the judgment and of keeping the same in full force as against any judgment debtor who does not pay his proportionate part thereof to the extent of his liability thereunder in law and in equity, and in the event the judgment was obtained in an action arising out of a joint tort, and only one, or not all of the joint tort-feasors, were made parties defendant, those tort-feasors made parties defendant, and against whom judgment was obtained, may, in an action therefor, enforce contribution from the other joint tort-feasors; or at any time before judgment is obtained, the joint tort-feasors made parties defendant may, upon motion, have the other joint tort-feasors made parties defendant," etc.

In Bargeon v. Transportation Co., 196 N.C. 776, 777, 147 S.E. 299, it is said: "Can one defendant, sued alone for personal injury, file an answer denying negligence and liability, and then proceed to allege that the injury was due to the specific acts of negligence of a third party, and thereupon, without asking relief against such third party, have such party brought into the suit? It is well settled under our system of procedure that, in order to hold a party in court, a cause of action must be alleged against him. If a defendant, against whom a cause of action exists, alleges a cause of action against a codefendant, growing out of the same matter, then all the parties are in court, and the causes must be tried upon their merits. Bowman v. Greensboro, 190 N.C. 611, 130 S.E. 502; Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761. *** The amendment of C.S. § 618, enacted February 27, 1929, permitting contribution between joint tort-feasors, does not, of course, apply to the case at bar, for the reason that the amendment creating such a cause of action was passed after this suit was commenced." The present action was instituted after the enactment of Section 618, supra.

Upon the pleadings in this cause defendant is entitled to the following defenses: (1) General denial of negligence. (2) Sole negligence on the part of John Campbell. (3) Joint and concurring negligence.

Section 522 provides: "Several defenses.--The defendant may set forth by answer as...