Montgomery v. Blades

• Decision Date: 08 June 1940
• Docket Number: 739.
• Citation: 9 S.E.2d 397,217 N.C. 654
• Parties: MONTGOMERY v. BLADES et al.
• Court: North Carolina Supreme Court

9 S.E.2d 397

217 N.C. 654

MONTGOMERY v. BLADES et al.

No. 739.

Supreme Court of North Carolina

June 8, 1940

The plaintiff Jane Montgomery instituted her action against the Southern Railway Company, City of Durham and Grace M. Blades administratrix of William B. Blades, deceased, and filed complaint setting up a cause of action for damages for personal injury alleged to have been caused her by the concurring negligence of the three defendants. She alleged that the defendant Southern Railway Company constructed and maintained with the consent and approval of the City of Durham an underpass on Chapel Hill Street in the City of Durham and placed concrete supports along the center of Chapel Hill Street under the defendant Railway Company's tracks, thereby constituting an obstruction in said street which was negligently maintained without sufficient lights with the knowledge of the City. Plaintiff further alleged that she was a passenger in an automobile driven by the defendant's intestate William B. Blades on the evening of February 21, 1939, and was injured when the automobile was negligently driven by said Blades against the concrete supports so negligently constructed and maintained in the center of the street under the Railway Company's tracks. She alleged the amount of her damages to be $50,000.

The corporate defendants filed answers denying the allegations of negligence as to them, alleging that the sole proximate cause of plaintiff's injury was the negligence of William B Blades, and set up the contributory negligence of plaintiff as a bar to her action, and asked, if recovery be had as against them, that the question of primary and secondary liability between them be determined.

Thereafter the defendant Blades filed answer denying the allegations of negligence as to her intestate, and, as an affirmative cross-complaint against her co-defendants, alleged that the death of her intestate was caused by the negligence of the corporate defendants, and prayed that she recover of her co-defendants damages therefor in the sum of $200,000.

The corporate defendants moved to dismiss the cross-action of the defendant Blades against them. These motions were denied, and defendants appealed.

Fuller Reade, Umstead & Fuller, of Durham, and R. E. Whitehurst, of New Bern, for Grace M. Blades.

Hedrick & Hall, of Durham, for Southern Ry. Co.

C. V. Jones and S. C. Brawley, both of Durham, for City of Durham.

DEVIN Justice.

The corporate defendants appealed from the order of the court below denying their motions to dismiss the cross-action against them set up in the answer or cross-complaint of their co-defendant Grace M. Blades, administratrix of William B. Blades, deceased.

Upon examination of the pleadings in this action and consideration of the facts therein alleged, we are of opinion that the learned judge who heard the case below was in error in denying the motion of the appealing defendants.

The general rule seems to have been established by the decisions of this court that one defendant, jointly sued with others, may not be permitted to set up in the answer a cross-action not germane to the plaintiff's action. A cause of action arising between defendants not founded upon or necessarily connected with the subject matter and purpose of the plaintiff's action should not be engrafted upon the action which the plaintiff has instituted. In order that a cross-action between defendants may be properly considered as a part of the main action, it must be founded upon and connected with the subject matter in litigation between the plaintiff and the defendants. Bowman v. Greensboro, 190 N.C. 611, 130 S.E. 502; Rose v. Warehouse Co., 182 N.C. 107, 108 S.E. 389; Coulter v. Wilson, 171 N.C. 537, 88 S.E. 857; Bobbitt v. Stanton, 120 N.C. 253, 26 S.E. 817; Baugert v. Blades, 117 N.C. 221, 23 S.E. 179; Gibson v. Barbour, 100 N.C. 192, 6 S.E. 766; Hulbert v. Douglas, 94 N.C. 128; Joyce v. Growney, 154 Mo. 253, 55 S.W. 466; 49 C.J. 312 McIntosh Prac. & Pro. 493.

Section 602 of the Consolidated Statutes provides that "judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may determine the ultimate rights of the parties on each side, as between themselves." This permits the determination of questions of primary and secondary liability between joint tort-feasors, but it may not be understood to authorize the consideration of cross-actions between defendants as to matters not connected with the subject of the plaintiff's action.

In Hulbert v. Douglas, supra, it was said: "The practice, sanctioned by the Code, does not go so far as to permit the introduction of questions in dispute among the defendants, unless they arise out of the subject of the action as set out in the complaint, and have such relation to the plaintiff's claim, as that their adjustment is necessary to a full and final determination of the cause."

In Coulter v. Wilson, supra, this statement of the rule was quoted with approval [171 N.C. 537, 88 S.E. 858]: "A cross-action by a defendant against a co-defendant or third party must be in reference to the claim made by the plaintiff and based upon an adjustment of that claim. Independent and irrelevant causes of action cannot be litigated by cross-actions."

The same result was reached in the case of Liebhauser v Milwaukee Electric Railway & Light Co., 180 Wis. 468, 193 N.W. 522, 524, 43 A.L.R. 870, where the facts were similar to those here alleged. There the plaintiff, injured as result of...