Hunsucker v. High Point Bending & Chair Co.

• Decision Date: 29 April 1953
• Docket Number: No. 310,310
• Citation: 237 N.C. 559,75 S.E.2d 768
• Court: North Carolina Supreme Court
• Parties: HUNSUCKER, v. HIGH POINT BENDING & CHAIR CO. et al.

Page 768

75 S.E.2d 768

237 N.C. 559

HUNSUCKER, v. HIGH POINT BENDING & CHAIR CO. et al.

No. 310

Supreme court of North Carolina.

April 29, 1953

Eddy S. Merritt and Patrick & Harper, Hickory, for plaintiff Orvin O. Hunsucker, appellee.

Thomas P. Pruitt, Hickory, E. S. Delaney, Jr. and A. Y. Arledge, Raleigh, for original defendant Carolina Power & Light Co., appellant.

Jones & Small, Charlotte and Sigmon & Sigmon, Newton, for additional defendant Herman-Sipe & Co., appellee.

Jones & Small, Charlotte, for the additional defendant United States Casualty Co., appellee.

ERVIN, Justice.

It is advisable to note at the outset certain well settled rules of the common law which were accorded full recognition in this State before the adoption of the Workmen's Compensation Act. G.S. § 97-1 et seq.

Under the common law, an injured person can sue any one or all of several joint tort-feasors whose negligent acts or omissions unite to produce his injury. Barber v. Wooten, 234 N.C. 107, 66 S.E.2d 690; Bechtler v. Bracken, 218 N.C. 515, 11 S.E.2d 721; Smith v. Sink, 210 N.C. 815, 188 S.E. 631; Ridge v. City of High Point 176 N.C. 421, 97 S.E. 369; Sircey v. Hans Rees' Sons, 155 N.C. 296, 71 S.E. 310; Dillon v. City of Raleigh, 124 N.C. 184, 32 S.E. 548.

The general rule of the common law is that there is no right to indemnity as between joint tort-feasors. Taylor v. J. A. Jones Construction CO., 195 N.C. 30, 141 S.E. 492; Bowman v. City of Greensboro, 190 N.C. 611, 130 S.E. 502. This general rule is subject to certain well defined exceptions or limitations, which coalesce in the doctrine that a party secondarily liable in a tort action is emtitled to indemnity from the parth primarily liable, even in cases where both parties are denominated joint tort-feasors.

One of these exceptions or limitations rests solely upon a difference between the kinds of negligence of two tort-feasors, and comes into play when the active negligence of one tort-feasor and the passive negligence of another tort-feasor combine and proximately cause an injury to a third person. Bost v. Metcalfe, 219 N.C. 607, 14 S.E.2d 648; Slattery v. Marra Bros., 2 Cir., 186 F.2d 134; 65 C.J.S., Negligence, § 102. In such case, the passively negligent tort-feasor, who is compelled to pay damages to the injured person on account of the injury, is entitled to indemnity from the actively negligent tort-feasor. Wright's Clothing Store v. Ellis Stone & Co., 233 N.C. 126, 63 S.E.2d 118.

The rationale of this exception or limitation is similar to that which underlies the entire law of indemnity. 42 C.J.S., Indemnity, §§ 2 and 23. It is simply this: The actively negligent tort-feasor and the passively negligent tort-feasor are both liable in damages to the injured third person for the joint wrong. As between themselves, however, the primary liability for the damages rests upon the actively negligent tort-feasor because of the difference in the kinds of negligence of the two tort-feaors. When the passively negligent tort-feasor is forced to pay the damages to the injured third person, he discharges the obligation for which the actively negligent tort-feasor is primarily liable, and for this reason is entitled to indemnity from him. Wright's Clothing Store v. Ellis Stone & Co., supra; Johnson v. City of Asheville, 196 N.C. 550, 146 S.E. 229; Taylor v. J. A. Jones Construction Co., supra; Bowman v. City of Greensboro, supra; Hipp v. Farrell, 169 N.C. 551, 86 S.E. 570; Guthrie v. City of Durham, 168 N.C. 573, 84 S.E. 859; Doles v. Seaboard Air Line R. Co., 160 N.C. 318, 75 S.E. 722, 42 L.R.A., N.S., 67; Commissioners of Lexington v. Aetna Indemnity Co., 155 N.C. 219, 71 S.E. 214; Gregg v. City of Wilmington, 155 N.C. 18, 70 S.E. 1070.

Although it is bottomed on the liability of the actively negligent tort-feasor and the passively negligent tort-feasor to the same person for the joint wrong, this exception or limitation was ingrafted on the general rule denying indemnity by judicial decisions during the golden age of the quasi contract when judges resorted to legal fictions to lend the appearance of legal orthodoxy to new rules of law evolved by their own imaginations. The old-time judges said that the duty imposed by law upon the actively negligent tort-feasor to reimburse the passively negligent tort-feasor for the damages paid by him to the victim of their joint tort was based on an implied contract, meaning a contract implied in law from the circumstance that the passively negligent tort-feasor had discharged an obligation for which the actively negligent tort-feasor was primarily liable. And this is all the courts mean today when they declare that the right of the passively negligent tort-feasor to indemnity from the actively negligent tort-feasor rests upon an implied contract. There is, of course, in such case no contract implied in fact. This is necessarily so because contracts implied in factare true contracts based on consent. Queen v. DeHart, 209 N.C. 414, 184 S.E. 7; Montgomery v. Lewis, 187 N.C. 577, 122 S.E. 374; 12 Am.Jur., Contracts, section 6; 17 C.J.S., Contracts, §§ 4 and 6.

When an employee who has accepted and is bound by the provisions of the North Carolina Workmen's Compensation Act suffers an injury by accident arising out of and in the course of his employment as the proximate consequence of the active negligence of his employer and the passive negligence of a third party, he can claim the compensation allowed by the Workmen's Compensation Act for his injury from his employer and the insurance carrier. He can also sue the negligent third parth for the damages resulting from his injury in a common law action of tort in case neither his employer nor the insurance carrier brings such an action against the negligent third parth within six months from the date of the injury. G.S. § 97-10. The injured plaintiff has pursued these courses in the instant cause.

This brings us to the chief question arising on this appeal. Does the North Carolina Workmen's Compensation Act abrogate the common law right of a third party to recover indemnity from an employer for damages which the third party may be compelled to pay to an injured employee on account of a compensable injury proximately caused by the active negligence of the employer and the passive negligence of the third parth?

Counsel for the appellant admit that this inquiry must be answered in the affirmative unless we repudiate as unsound what was said by us in the seventh subdivision of the opinion in the recent case of Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886. They assert with much earnestness and eloquence that we should take that course. They insist that the construction put upon the North Carolina Workmen's Compensation Act in the Lovette case is grossly unjust to the passively negligent third party; that diligent research indicates that the Lovette case is not supported by a single authority in any jurisdiction; that we fell into error in the Lovette case because we overlooked a fundamental distinction between the statutory right of one joint tort-feasor to demand contribution from another joint tort-feasor in equal fault and the common law right of a passively negligent joint tort-feasor to require indemnity from an actively negligent joint tort-feasor; and that the Lovette case cannot be reconciled with the North Carolina Workmen's Compensation Act.

The sincerity and zeal of the able attorneys who represent the appellant prompt us to test the validity of each of these arguments, and to examine anew the considerations underlying the Lovette case, uninfluenced by anything said or decided in Essick v. City of Lexington, 233 N.C. 600, 65 S.E.2d 220; or Eledge v. Carolina Power & Light Co., 230 N.C. 584, 55 S.E.2d 179.

These provisions of the Workmen's Compensation Act bear directly on our problem:

1. 'Every employer who accepts the compensation provisions of this article shall secure the payment of compensation to his employees in the manner hereinafter provided; and while such security remains in force, he or those conducting his business shall only be liable to any employee who elects to come under this article for personal injury or death by accident to the extent and in the manner herein specified.' G.S. § 97-9.

2. 'The rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this article, respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, as against his employer at common law, or otherwise, on account of such injury, loss of service, or death: Provided, however, that in any case where such employee, his personal representative, or other person may have a right to recover damages for such injury, loss of service, or death from any person other than the employer, compensation shall be paid in accordance with the provisions of this chapter'. G.S. § 97-10.

We declared, in substance, in Lovette v. Lloyd, supra, that the North Carolina Workmen's Compensation Act abrogates the common law right of the passively negligent third party to demand indemnity from the actively negligent employer for damages paid by the former to the injured employee. Counsel for the appellant press a twofold argument to sustain the proposition that this construction of the Workmen's Compensation Act is grossly unjust to the passively negligent third party. They assert initially that it converts the third party into a scapegoat, and sends him away into the legal wilderness bearing the sin of the employer on his head. They insist secondarily that it wrests from the third party his common law right of indemnity, and gives him nothing whatever in recompense.

Neither of these positions is wholly sound. When the passively negligent third party responds in damages to the injured...