Sisk v. Perkins, 199

Decision Date17 March 1965
Docket NumberNo. 199,199
Citation264 N.C. 43,140 S.E.2d 753
CourtNorth Carolina Supreme Court
PartiesNovella SISK v. Lee Augustus PERKINS, Original Defendant, and David William Sisk, Additional Defendant.

Mullen, Holland & Harrell, Gastonia, for original defendant appellant.

Childers & Fowler, Whitener & Mitchem, Gastonia, for additional defendant appellee.

Verne E. Shive, Gastonia, for plaintiff appellee.

DENNY, Chief Justice.

The appellant herein assigns as error the ruling of the court below that the judgment heretofore entered in the action between Lee Augustus Perkins and David William Sisk is not res judicata in the instant case as between the original defendant and the additional defendant, as shown by the amendment to the answer of defendant Lee Augustus Perkins. '* * * (W)here A sues B alone as tort feasor, and B impleads C on cross-claim allegations of negligence for contribution or indemnification, a resulting judgment in respect of the cross-claim will operate as an estoppel in a subsequent action between B and C based upon allegations of negligence arising out of the same occurrence. The reverse order of actions, where in the former action B sued C, and in the subsequent action by A against C, C impleads B, yields the same result.

'The controlling principle here is that, as the court puts it: 'A judgment ordinarily settles nothing as to the relative rights and liabilities of the co-plaintiffs or co-defendants inter se, unless their hostile or conflicting claims were actually brought in issue, litigated and determined.'' McIntosh, North Carolina Practice and Procedure, Vol. 2, Cumulative Supplement, § 1734.5, page 47.

In Williams v. Hunter, 257 N.C. 754, 127 S.E.2d 546, Rodman, J., speaking for the Court, said: 'The amendment alleges a prior adjudication of the rights of Barnes and Ferguson in a court having jurisdiction of the parties and the cause of action. If the plea be established, it defeats Ferguson's right to relitigate any question then in controversy. The negligence of each driver, the parties to that action, was necessarily in issue. The adjudication then made is binding on the parties. Hill v. Edwards, 255 N.C. 615, 122 S.E.2d 383; Bullard v. Berry Coal & Oil Co., 254 N.C. 756, 119 S.E.2d 910; Crain & Denbo, Inc. v. Harris & Harris Construction Co., 252 N.C. 836, 114 S.E.2d 809; Jenkins v. Fowler, 247 N.C. 111, 100 S.E.2d 234; Tarkington v. Rock Hill Printing & Finishing Co., 230 N.C. 354, 53 S.E.2d 269, 11 A.L.R.2d 221; Allen v. Salley, 179 N.C. 147, 101 S.E. 545.'

In Hill v. Edwards, 255 N.C. 615, 122 S.E.2d 383, this Court said: "(W)here the initial action is instituted by the passenger in one vehicle against the driver of the other vehicle, in which the passenger's driver is joined for contribution, adjudication that the passenger's driver was not guilty of negligence constituting a proximate cause of the accident, is res judicata in a subsequent action between the drivers.' Strong's North Carolina Index, Volume III, Judgments, Section 29, page 45, citing Jenkins v. Fowler, 247 N.C. 111, 100 S.E.2d 234.

'It is equally true in such a factual situation, where the plaintiff recovers judgment against the original defendant, and the jury finds the additional defendant guilty of negligence and that such negligence concurred in jointly and proximately causing plaintiff's injuries and gives the original defendant a verdict for contribution pursuant to the provisions of GS § 1-240, such judgment is res judicata in...

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6 cases
  • Alford v. Shaw
    • United States
    • North Carolina Supreme Court
    • December 5, 1990
    ...years of active litigation of this suit, defendants have waived their right to complain about verification. See Sisk v. Perkins, 264 N.C. 43, 46-47, 140 S.E.2d 753, 755-56 (1965). We agree with defendants that the complaint in this case has not been properly verified. However, we hold that ......
  • Miraglia v. Miraglia
    • United States
    • New Jersey Superior Court — Appellate Division
    • June 23, 1969
    ...Farmers Union Property & Cas. Co. v. Fisher, 284 F.2d 421 (8 Cir. 1960); Yellow Cab Co. of D.C. v. Janson, Supra; Sisk v. Perkins, 264 N.C. 43, 140 S.E.2d 753 (Sup.Ct.1965). Nor do we deem it significant that such a result may seem to permit an inconsistent verdict in a later action. Since ......
  • Johnson v. Petree, 6919SC96
    • United States
    • North Carolina Court of Appeals
    • February 26, 1969
    ...present plaintiff and Alexander Johnson was not. The Petrees rely on Stansel v. McIntyre, 237 N.C. 148, 74 S.E.2d 345; and Sisk v. Perkins, 264 N.C. 43, 140 S.E.2d 753, for their argument that the judgment previously recovered by them against Alexander Johnson constitutes an adjudication of......
  • Abraham v. Sederstrom, s. 45825 and 45860
    • United States
    • Minnesota Supreme Court
    • September 5, 1975
    ...by verdict to implead his cotort-feasor. Gorski v. Commercial Ins. Co. of Newark, 206 F.Supp. 11 (E.D.Wis.1962); Sisk v. Perkins, 264 N.C. 43, 140 S.E.2d 753 (1965). It is true that application of estoppel by verdict at this stage in the proceedings will not prevent relitigation of any issu......
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