Hayes v. City of Wilmington

• Decision Date: 29 February 1956
• Docket Number: No. 169,169
• Citation: 243 N.C. 525,91 S.E.2d 673
• Parties: W. J. HAYES, Administrator of the Estate of W. J. Hayes, Jr. v. CITY OF WILMINGTON, North Carolina; Towles-Cline Construction Company; E. B. Towles Construction Company, and S. E. Cooper, Trading and Doing Business as S. E. Cooper Company; John Lindsey Neal and Seaboard Surety Company.
• Court: North Carolina Supreme Court

Page 673

91 S.E.2d 673

243 N.C. 525

W. J. HAYES, Administrator of the Estate of W. J. Hayes, Jr. v. CITY OF WILMINGTON, North Carolina; Towles-Cline Construction Company; E. B. Towles Construction Company, and S. E. Cooper, Trading and Doing Business as S. E. Cooper Company; John Lindsey Neal and Seaboard Surety Company.

No. 169

Supreme Court of North Carolina.

Feb. 29, 1956

McClelland & Burney, Wilmington, McLean & Stacy, Lumberton, and R. M. Kermon, Wilmington, for defendants Cooper and Neal, appellants.

R. L. Savage, Raleigh, and JAmes & James, Wilmington, for Towles-Cline Const. Co. and E. B. Towles Const. Co., appellants.

Hogue & Hogue, Wilmington, and A. Y. Arledge, Raleigh, for Carolina Power & Light Co., appellee.

JOHNSON, Justice.

Decision here turns on whether the amended cross complaint filed by the defendants Cooper and Neal states facts sufficient to constitute a cause of action for contribution against the power company. In determining this question, these principles of law established by our decisions come into focus:

1. Liability for contribution under the provisions of G.S. § 1-240 may not be invoked except among joint tortfeasors. Therefore, in order for one defendant to join another as a third-party defendant for the purpose of contribution, he must allege facts sufficient to show joint tortfeasorship and his right to contribution in the event plaintiff recovers against him. Hayes v. City of Wilmington, 239 N.C. 238, 79 S.E. 2d 792.

2. In order to show joint tortfeasorship, it is necessary that the facts alleged in the cross complaint be sufficient to make the third party liable to the plaintiff along with the cross-complaining defendant in the event of a recovery by the plaintiff against him. Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559, 75 S.E.2d 768. Also, the allegations of the cross complaint must be so related to the subject matter declared on in the plaintiff's complaint as to disclose that the plaintiff, had he desired to do so, could have joined the third party as a defendant in the action. Hobbs v. Goodman, 240 N.C. 192, 81 S.E.2d 413; Id., 241 N.C. 297, 84 S.E.2d 904. However, it is established by our decisions that when a defendant in a negligent injury action files answer denying negligence but alleging, conditionally or in the alternative, that if he were negligent, a third party also was negligent and that the negligence of such third party concurred in causing the injury in suit, the defendant is entitled, on demand for relief by way of contribution, to have such third person joined as a co-defendant under the statute, G.S. § 1-240. Freeman v. Thompson, 216 N.C. 484, 5 S.E.2d 434; Lackey v. Southern Ry. Co., 219 N.C. 195, 13 S.E. 2d 234; Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335, 156 A.L.R. 922.

3. When an alleged joint tortfeasor is brought into a case as an additional party defendant, and it turns out that no cause of action is stated against him, either in the main action or in a crossaction pleaded by another defendant, he is an unnecessary party to the action and, on motion, may have his name stricken from the record as mere surplusage. Fleming v. Carolina Power & Light Co., 229 N.C. 397, 50 S.E.2d 45; Winders v. Sutherland, 174 N.C. 235, 93 S.E. 726. For all practical purposes, the motion to strike operates as a demurrer and tests the legal sufficiency of the challenged pleading to state facts sufficient to constitute a cause of action against the additional party defendant. Citizens Bank of Marshall v. Gahagan, 210 N.C. 464, 187 S.E. 580.

The former appeal in this case was from an order allowing the motion of the power company to strike its name from the record on the ground that Cooper's cross complaint failed to state a cause of action against the power company for contribution. We affirmed the order of the lower court. It is to be noted, however, that the cross complaint did not fail because of lack of allegations of negligence against the power company. Indeed, the defective cross complaint contained plenary allegations of negligence against the power company. The fatal defect arose out of the manner in which Cooper dealt with the crucial element of proximate cause--his failure to allege joint tortfeasorship between himself and the power company. He alleged that the negligence of the power company was the sole proximate cause of the explosion. This allegation, positively made by Cooper, was never modified or varied by conditional averment or alternative plea to the effect that if the court should find him actionably negligent, then and in that event, the negligence of the power company concurred with his own negligence in causing the explosion and resultant death of the intestate. The result was that Cooper's original cross complaint failed to allege joint tortfeasorship- --the prime essential to the statement of a cause of action for contribution under G.S. § 1-240. The opinion on former appeal takes cognizance of the three elements of negligence alleged against the power company, and then points out that 'Nowhere is it alleged that the negligence of the power company concurred with the negligence of Cooper in causing the death of the intestate. Instead, he alleges that the negligence of the power company was the sole proximate cause of * * * injury and death.' 239 N.C. mid. page 243, 79 S.E.2d top page 796. Thus, for want of allegations showing concurrent negligence of Cooper and the power company, Cooper's first cross complaint came to naught. The decision on former appeal was rested on this omission.

However, the power company now contends that the former decision rests on a broader base. It is urged that the former decision decided in part that Cooper's first cross complaint affirmatively disclosed negligence on his part which (1) intervened as an outside agency and completely insulated the negligence, if any, of the power company, or (2) at least invoked the doctrine of primary and secondary liability as between Cooper and the power company and exposed Cooper to primary liability. In support of these contentions, the power company relies on the following statements appearing in the opinion immediately after the pronouncement that Cooper's cross complaint failed to allege concurrent negligence on the part of Cooper and the power company:

'If we concede that Cooper has sufficiently alleged negligence on the part of the power company and that plaintiff will prove the acts of negligence he alleges against Cooper (which Cooper does not even conditionally concede in his cross complaint), it is made to appear that the acts of Cooper were the acts of an 'outside agency or responsible third person' which completely insulated the negligence, if any, of the power company. (Citing authorities.)

'The negligence, if any, of the power company was passive; that of defendant was active. Without the negligence of Cooper, the negligence of the power company would have caused no harm. The intervening acts of Cooper did not merely operate as a condition on or through which the negligence of the power company operated to produce the injury and deaths of plaintiff's intestates, or merely accelerate or divert the negligence of the power company. It broke the line of causation, * * so that it cannot be said that the power company could have reasonably foreseen the negligence of Cooper or that the two are joint tort-feasors.

'Moreover, the acts of negligence of the power company alleged by Cooper, when related to the negligence alleged by plaintiff, at least invokes the doctrine of primary and secondary liability, Cooper being the one primarily liable. And it is axiomatic that one who is primarily liable cannot recover over against one who is secondarily liable.'

The power company points to the foregoing expressions and contends that the conclusions therein stated are part of the law of the case. The contention is supported by the further argument that since the amended cross complaint brings forward the same aspects of negligence which were alleged against the power company in Cooper's original cross complaint, it logically follows that the conclusions stated in the opinion of the Court on former appeal in respect to intervening negligence and primary liability bar maintenance of the new cross-action under application of the doctrine of the law of the case. The appellants, on the other hand, contend (1) that the original cross complaint filed by Cooper does not disclose that his negligence intervened and insulated, or relegated to a position of secondary liability, the negligence of the power company, and (2) that the conclusions to the contrary expressed in the opinion on former appeal are obiter dicta and therefore are not precedents in the sense of settling the law of the case.

As bearing on these contentions, it may be conceded that as a general rule when an appellate court passes on a question and remands the cause for further proceedings, the questions there settled become the law of the case, both in subsequent proceedings in the trial court and on subsequent appeal, provided the same facts and the same questions which were determined in the previous appeal are involved in the second appeal. Penny v. Atlantic Coast Line R. Co., 161 N.C. 523, 77 S.E. 774; McGraw v. Southern R. Co., 209 N.C. 432, 184 S.E. 31; Robinson v. McAlhaney, 216 N.C. 674, 6 S.E.2d 517; Templeton v. Kelley, 216 N.C. 487, 5 S.E.2d 555; Wall v. City of Asheville, 220 N.C. 38, 16 S.E.2d 397; Pinnix v. Griffin, 221 N.C. 348, 20 S.E. 2d 366, 141 A.L.R. 1164; Bruce v. O'Neal Flying Service, 234 N.C. 79, 66 S.E.2d 312; 3 Am.Jur., Appeal and Error, Sec. 985.

However, the doctrine of the law of the case contemplates only such points as are actually presented and necessarily involved in determining the case. The doctrine does not apply to what is said by the reviewing court, or by the writing justice, on points arising outside of the case and not embodied in the...