Tarkington v. Rock Hill Printing & Finishing Co.

• Decision Date: 04 May 1949
• Docket Number: 525
• Citation: 53 S.E.2d 269,230 N.C. 354
• Parties: TARKINGTON v. ROCK HILL PRINTING & FINISHING CO. et al. DUNSTON v. ROCK HILL PRINTING & FINISHING CO. et al.
• Court: North Carolina Supreme Court

53 S.E.2d 269

230 N.C. 354

TARKINGTON v. ROCK HILL PRINTING & FINISHING CO. et al.

DUNSTON v. ROCK HILL PRINTING & FINISHING CO. et al.

No. 525

Supreme Court of North Carolina

May 4, 1949

Separate actions by Mrs. R. O. Tarkington and R. M Dunston to recover damages for injuries sustained when the automobile in which they were riding, owned and operated at the time by R. O. Tarkington, was struck by or collided with a truck owned by the corporate defendant and operated at the time by its agent and employee, William T. Floyd, it being alleged that the damages in both instances were caused by the negligence or default of the defendants. As both actions arose out of the same circumstances and rest upon the same evidence, they were by consent consolidated and tried as one case.

Proceeding under G.S. s 1-240, the original defendants, by plea cross-action and motion in each case, brought in the driver of the vehicle in which the plaintiffs were riding, as a joint tort-feasor, alleging contributory liability and demanding that he appear and answer the crosscomplaint of the defendants, and that their respective rights be determined and enforced in this action.

Responding to the motion and crossaction of the original defendants, R O. Tarkington, the owner and driver of the automobile in which the plaintiffs were riding, filed plea in bar and moved to dismiss the cross-action against him on the ground that in a previous action entitled 'R. O. Tarkington v. Rock Hill Printing & Finishing Company and W. T. Boyd,' involving the same collision, the issues of negligence contributory negligence and property damage, as between the then parties litigant, were submitted to a jury and determined in favor of the plaintiff therein. No appeal was prosecuted in the case. This being conceded, the motion to dismiss the cross-action was allowed and the original defendants noted an exception.

The trial then proceeded between the plaintiffs and the original defendants. The record discloses that on the afternoon of 19 February, 1947, the corporate defendant's truck driven by the individual defendant was traveling in a westerly direction on Highway No. 27, between Albemarle and Charlotte, at a speed of 35 or 40 miles an hour. Following and traveling in the same direction was R. O. Tarkington, driving his Oldsmobile Sedan, with his wife, Mrs. R. O. Tarkington, and R. M. Dunston, all sitting on the front seat. As the two vehicles approached an intersecting highway, about five miles from Charlotte, the driver of the Tarkington car started around the truck and speeded up in order to pass. The driver of the truck, evidently intending to make a left turn into the intersecting highway, pulled to his left across the center-line of the highway which caused the bumper of the truck to strike the fender of the sedan, and a collision ensued. The Tarkington car was damaged and each of the plaintiffs sustained serious and permanent injuries.

The evidence is conflicting as to who was to blame for the accident or collision. Issues of negligence and damages were submitted to the jury, and answered in favor of the plaintiffs, the damages in Mrs. R. O. Tarkington's case being assessed at $16,000, and in the Dunston case at $7,000.

From judgments on the verdicts, the defendants, Rock Hill Printing & Finishing Company and William T. Floyd, appeal, assigning errors.

Smathers, Smathers & Carpenter, of Charlotte, for plaintiffs, appellees.

Tillett & Campbell and James B. Craighill, all of Charlotte, for original defendants, appellants.

Jones & Small, of Charlotte, for defendant R. O. Tarkington, appellee.

STACY Chief Justice.

We have here for consideration, (1) the ruling on the plea in bar of the alleged joint tort-feasor, (2) the conpetency of evidence, (3) the argument of counsel to the jury, and (4) the correctness and adequacy of the charge.

1. The Plea in Bar of Alleged Joint Tort-feasor: The corporate defendant and the driver of its truck, by plea, cross-action and motion in each case, had the driver of the automobile in which the plaintiffs were riding, brought in as an alleged joint tort-feasor, for the purpose of enforcing contribution of his proportionate part of any recovery which the plaintiffs might obtain in these actions. The driver of the automobile, thus brought in, interposed a plea in bar to the maneuver of the original defendants on the ground that in a prior action wherein he was plaintiff and they defendants, the jury exculpated him from any contributory liability for the collision in suit. The judgment in that case showing the jury's answers to the issues of negligence, contributory negligence and property damage, was before the court on the hearing of the plea, and there was no challenge to its significance or correctness. This judgment contains the recital that as between the parties then before the court, the plaintiff was not contributorily negligent or properly chargeable by the defendants therein with any joint tort-feasorship. Charnock v. Taylor, 223 N.C. 360, 26 S.E.2d 911, 148 A.L.R. 1126.

It is true that the right of one joint tort-feasor to enforce contribution against another is said to spring from the plaintiff's suit, and the present action was not then before the court. This right of contribution, however, projects itself beyond the plaintiff's suit, and is not dependent upon the plaintiff's continued right to sue both or all the joint tort-feasors. Godfrey v. Tidewater Power Co., 223 N.C. 647, 27 S.E.2d 736, 149 A.L.R. 1183. It is the joint tort and common liability to suit which gives rise to the right to 'enforce contribution' under the statute. G.S. s 1-240. The prior suit as between the then parties litigant determined the question whether the driver of the automobile was contributorily negligent or a joint tort-feasor with the owner and driver of the truck in bringing about the collision. Hence, as between the parties there litigant, this matter would seem to be res judicata. Cannon v. Cannon, 223 N.C. 664, 28 S.E.2d 240; 30 Am.Jur. 908, et seq. But of course, the judgment there would not be binding on the plaintiffs here. They were not parties to that suit, and they are entitled to pursue their rights in their own way. Meacham v. Larus & Bros. Co., 212 N.C. 646, 194 S.E. 99; Annotation, 133 A.L.R. 185.

The appellants contend, therefore, that as the judgment in the prior action between the owners and drivers of the two vehicles is not binding on the plaintiffs here, who were passengers in the Tarkington car, they, the appellants, are entitled to have the issue of joint liability as between themselves and the new defendant determined in the present suit. Meacham v. Larus & Bros. Co., supra; Neenan v. Woodside Astoria Transp. Co., 261 N.Y. 159, 184 N.E. 744; Annotation, 133 A.L.R. 181. The conclusion is a non sequitur. The issue of contributory liability as between the defendants has already been determined. Solicitude for the rights of the plaintiffs, which they may elect not to pursue, gives the defendants no cause of action. The right to contribution comes from the Act of Assembly, and it is to be enforced secundum formam statuti--'according to the form of the statute '. Hoft v. Mohn, 215 N.C. 397, 2 S.E.2d 23.

The procedure of the original defendants in bringing in the driver of the Tarkington car as an alleged joint tort-feasor, is quite premissible, Freeman v. Thompson, 216 N.C. 484, 5 S.E.2d 434, but here they were met at the threshold with a plea in bar as between themselves and the new defendant, and the plaintiffs have refused to join them in their allegation of joint tort-feasorship. Hence, they were left to their own resources as against the new defendant, who exhibited a judgment showing that the allegation of his contributory liability had already been tried out in an action between them.

The statute gives to one joint tort-feasor, who is sued, the right to bring in others jointly liable with him and to require them to contribute proportionately to the payment of any judgment which the plaintiff may recover, but this would not include the right to step into the plaintiff's shoes and prosecute any claim which he might have against them. The right here sought to be enforced is one of contribution, and not one of subrogation. Charnock v. Taylor, supra.

Moreover, the plaintiffs have elected not to sue the driver of the Tarkington car. They have alleged no cause of action against him, and can take no...