Gregg v. Wilmington

• Decision Date: 19 April 1911
• Parties: GREGG v. CITY OF WILMINGTON et al.
• Court: North Carolina Supreme Court

70 S.E. 1070

155 N.C. 18

GREGG v. CITY OF WILMINGTON et al.

Supreme Court of North Carolina

April 19, 1911

Appeal from Superior Court, New Hanover County; Cooke, Judge.

Action by Susan M. Gregg, administratrix, against the City of Wilmington and James F. Woolvin. Judgment for plaintiff against the City of Wilmington, and the defendants appeal. New trial.

Where a city, whose liability for wrongful death caused by an obstruction in a street is dependent upon that of a contractor, is joined with such contractor in an action, and there is judgment for plaintiff against the city alone, a partial new trial should not be granted, unless it clearly appears that the matter involved is entirely distinct and separable from that involved in the other issues, and that the new trial can be had without complicating the other matters, and that no injury will be done to either party thereby.

In an action for wrongful death in which a contractor and a city were made co-defendants, and in which the city's liability depended upon the primary liability of the contractor, the city's answer, denying that its co-defendant was negligent, and asking judgment over against him if he was negligent, is good on demurrer by the other defendant.

This action was brought by the plaintiff against the city of Wilmington and James F. Woolvin, to recover damages for negligently causing the death of E. M. Gregg, her husband and intestate. The defendant Woolvin, who was engaged in the demolition of an old building, for the purpose of constructing a new one on the same site, obtained permission from the authorities of the city to use the sidewalk in front of the lot temporarily, as a place for piling bricks taken from the old building. In order to do the work, it became necessary to close the sidewalk, and the bricks were piled on it and in the street, so that pedestrians were compelled to pass around the pile of bricks in using Princess street where the work was being done. It is alleged by the plaintiff that the pile of bricks was 12 feet high, 6 feet wide, and 25 feet long, and that the bricks were improperly and dangerous stacked, and not being securely propped they were liable to be toppled from their position by the jar of a passing street car; the railway being laid in the street only a few feet from the pile of bricks. The intestate, while walking from his home to his business office along Princess street, that being the direct and usual route for him, was stopped by a friend near the pile of bricks, and, while standing there engaged in conversation, a street car passed and jarred the bricks, so that they fell on the intestate and killed him. The plaintiff charges that her intestate's death was in this way caused by the negligence of Woolvin in piling the brick and leaving them in a dangerous condition, not perceptible to persons using the street by ordinary inspection, and that the city was negligent in permitting the bricks to remain piled in the street after it either knew, or could have known, of the danger to those using the street. The city of Wilmington answered the complaint by denying all the material allegations as to negligence. It then averred that, if the bricks were negligently piled, it was done by Woolvin, who, as between him and the answering defendant, is primarily liable, though it admits that they are both liable to plaintiff, if her intestate was killed by the negligent act of Woolvin, and the city was also negligent in respect to that act, as alleged by the plaintiff. It prayed for judgment against Woolvin, in the event that it should be held liable to the plaintiff and compelled to pay damages to her for Woolvin's negligent act. The defendant Woolvin demurred to this answer, but it is not now necessary to pass upon it as we will do so when we come to consider his appeal.

The court submitted issues to the jury, which, with the answers thereto, are as follows: (1) Was the plaintiff's intestate killed by the negligence of the city of Wilmington? Answer: "Yes." (2) Was the plaintiff's intestate killed by the negligence of the defendant James F Woolvin or his contractor, B. H. Stevens? Answer: "No." (3) Was the plaintiff's intestate guilty of contributory negligence? Answer: "No." (4) Were the bricks piled by B. H. Stevens, and was said Stevens an independent contractor in respect to that work? Answer: "No." (5) What amount of damage is plaintiff entitled to recover? Answer: "$7,000." The court set aside the verdict as to the second and fourth issues, and rendered judgment for the plaintiff upon the remaining issues against the city of Wilmington. Both defendants appealed.

Herbert McClammy and E. K. Bryan, for appellant

City of Wilmington. Ricaud & Empie, for appellant Woolvin. John D. Bellamy & Son and Rountree & Carr, for appellee.

Appeal of City of Wilmington.

WALKER, J. (after stating the facts as above).

We need not consider the numerous exceptions taken in this case, amounting in all to 86.

It is sufficient for us to say that there was error in setting aside the answers to the second and fourth issues and giving judgment against the city upon the others. The negligence of Woolvin necessarily preceded that of the city, if there was any negligence at all, for the city is charged with negligence, not because it carelessly piled the brick in the street, but because, Woolvin having so negligently piled them, it permitted them to remain so negligently piled in the street, and thereby to become dangerous to the public. The negligence of the city, upon the admitted facts, is directly and necessarily dependent upon the negligence of Woolvin, and cannot exist without it. If Woolvin was not negligent, then the city is free from blame, for it is not alleged, nor is it suggested, that the intestate would have been killed or injured in any way if the bricks had been properly stacked and secured. Even though the bricks were piled in the street, his position with respect to them would have been a safe one, but for the negligence of Woolvin. The verdict of the jury was therefore inconsistent. They could not, in law, discharge Woolvin and charge the other defendant. But it does not follow that because Woolvin is guilty the city is also, because, in order to charge the city with negligence, the jury must find, not only that the bricks were negligently piled by Woolvin, but that the city, with actual or constructive knowledge of their dangerous condition, permitted them to remain so.

It is true, as contended by counsel for the plaintiff, that the defendants are liable jointly and severally to her, if there was negligence by both of them which proximately caused her husband's death, and she might have sued them jointly or separately. If she had sued the city alone, a question might have arisen as to whether it would be proper to make Woolvin a party, at the request of the city and against the plaintiff's consent, even if thereby the entire controversy could be settled in one action. But she sued both defendants, and served Woolvin, as well as the city, with process, and required them to come in and answer her complaint.

She has also declared against both of them in her complaint, or at least her allegations are sufficient, in form and substance, to entitle her to judgment against both defendants. The judge's refusal of the plaintiff's motion that she be permitted to enter nonsuit as to Woolvin is not before us for review, even if it was not right under the circumstances of the case. We must, therefore, decide upon the ruling of the court below with all the parties before the court. As between the defendants, Woolvin's liability is primary, and that of the city is secondary, not that Woolvin must be placed in front of the city with respect to the plaintiff's right to recover for the alleged wrong, but if the plaintiff recovers against the city, then the latter is entitled to judgment against Woolvin for the amount of the plaintiff's recovery, because it was his wrong in negligently piling the brick that originated the plaintiff's cause of action against the city, and without which there would have been none, and it is but just and right that he should answer over to the city and indemnify and save it harmless.

It is a well-established rule of law that there can be no contribution or indemnity among mere tort-feasors. But the principle does not apply to a person seeking indemnity who did not join in the unlawful act, although he may thereby be exposed to liability, or to one who did not know, and was not presumed to know, that his act was unlawful; it must appear that the parties are in pari delicto as to each other before the plaintiff's recovery will be barred. 22 Cyc. 99. Judge Cooley thus states the rule: "As under the rules already laid down the party wronged may, at his election compel any one of the parties chargeable with the act, or any number less than the whole, to compensate him for the injury, it becomes a consideration of the highest importance to the person or persons thus singled out and compelled to bear the loss whether the others who were equally liable may be compelled to contribute to his relief. On this subject there is a general rule, and there are also some very important exceptions. The general rule may be found expressed in the maxim that no man can make his own misconduct the ground for an action in his own favor. If he suffers because of his own wrongdoing, the law will not relieve him. The law cannot recognize equities as springing from a wrong in favor of one concerned in committing it. But there are some exceptions to the general rule which rest upon reasons at least as forcible as those which support the rule itself. They are of cases where, although the law holds all the parties liable as wrongdoers...