Godfrey v. Tidewater Power Co.

• Decision Date: 24 November 1943
• Docket Number: 522.
• Citation: 27 S.E.2d 736,223 N.C. 647
• Parties: GODFREY v. TIDEWATER POWER CO. et al.
• Court: North Carolina Supreme Court

27 S.E.2d 736

223 N.C. 647

GODFREY v. TIDEWATER POWER CO. et al.

No. 522.

Supreme Court of North Carolina

November 24, 1943

Civil action to recover damages for death of plaintiff's intestate, alleged to have been caused by the negligence, default or wrongful acts of the defendants Tidewater Power Company and two of its agents, one a foreman the other an employee, when plaintiff's intestate, while working on a substation of the Power Company near the City of New Bern, around the hour of 1:30 A.M., 10 June, 1942, was electrocuted by coming in contact with a wire carrying a high voltage of electricity, which the defendants had previously undertaken to deaden or cut off and had failed to do so.

This action was instituted 28 April, 1943.

In its answer, filed 28 July, 1943, the corporate defendant denied liability and set up a cross-action against the City of New Bern for contribution as a joint tort-feasor in case the answering defendant should be held liable.

At the time of answering, the corporate defendant filed formal motion pursuant to C.S. § 618, as amended by Pub.Laws 1929 c. 68, to make the City of New Bern a party defendant. The Clerk denied this motion on the ground that it had not been made within a year of plaintiff's intestate's death, and the cause of action for wrongful death as against the City had therefore been lost. On appeal to the Judge the ruling of the Clerk was approved.

From the denial of its motion, the Tidewater Power Company appeals, assigning error.

Robinson & Jones, of Charlotte, for defendant Power Co., appellant.

Carswell & Ervin and Helms & Mulliss, all of Charlotte, for plaintiff, appellee.

STACY Chief Justice.

The question for decision is whether one of several defendants in an action for wrongful death arising out of a joint tort may have still another joint tort-feasor brought in and made a party defendant for the purpose of enforcing contribution, when the plaintiff's right of action against such other tort-feasor, originally subsisting, has been lost by the lapse of time. C.S. § 160; Curlee v. Duke Power Co., 205 N.C. 644, 172 S.E. 329. The law answers in the affirmative. 13 Am.Jur. 52; 18 C.J.S., Contribution, § 11, p. 19.

The pertinent meaning of C.S. § 618, as amended, is that in an action arising out of a joint tort wherein judgment may be rendered against two or more persons, who are jointly and severally liable, and not all of the joint tort-feasors have been made parties, those who are sued may at any time before judgment, upon motion, have the other joint tort-feasors brought in and made parties defendant in order to determine and enforce contribution. Freeman v. Thompson, 216 N.C. 484, 5 S.E.2d 434.

It is true common liability to suit must have existed as a condition precedent to contribution, but it is not essential that it should continue to subsist, or be kept alive, against all of the joint tort-feasors. De Brue v. Frank, 213 Wis. 280, 251 N.W. 494; Norfolk Southern R. Co. v. Gretakis, 162 Va. 597, 74 S.E. 841; Consolidated Coach Corp. v. Burge, 245 Ky. 631, 54 S.W.2d 16, 85 A.L.R. 1086. Indeed, the right of contribution may be enforced after liability to the injured person or his representative has been extinguished by the payment of the judgment and its transfer to a trustee for the benefit of the paying judgment debtor. Hoft v. Mohn, 215 N.C. 397, 2 S.E.2d 23.

In cases where the negligent acts of two or more persons concur in producing a single injury, with or without concert among them, the general rule is that they may be treated as joint tort-feasors and sued separately or together at the election of the injured party or his representative. Charnock v. Taylor, 223 N.C. 360, 26 S.E.2d 911; Hipp v. Farrell, 169 N.C. 551, 86 S.E. 570; Hough v. R. Co. 144 N.C. 692, 57 S.E. 469.

At common law no right of action for contribution existed between or among joint tort-feasors who were in pari delicto. Raulf v. Elizabeth City Light & Power Co., 176 N.C. 691 97 S.E. 236. With us the right is statutory, and its use necessarily depends upon the terms of the statute. Gaffney v. Lumbermen's Mut. Cas. Co., 209 N.C. 515, 184 S.E. 46. The pertinent part of the enactment, as amended in 1929, is that in all cases in the courts of this State wherein judgment has been, or may be, rendered against two or more persons or corporations, who are jointly and severally...