Evans v. . Johnson

Devin, J. The question presented by this appeal relates only to the defendants’ pleadings. The sufficiency of the answer of defendants D. Talmage Johnson and Banner Shoe to constitute a valid cross action against H. Jerome Johnson to determine his contingent liability for contribution as a joint tort-feasor is challenged by demurrer. The right of a defendant sued in tort to bring into the action another joint tort-feasor and upon sufficient plea to maintain his cross action against him for the purpose of determining his contingent liability for contribution is given by statute, G. S., 1-240, and upheld by numerous decisions of this Court. Wilson v. Massagee, 224 N. C., 705; Godfrey v. Power Co., 223 N. C., 647. The purpose of the statute is to permit defendants in tort actions to litigate mutual contingent liabilities before they have accrued, Lackey v. R. R., 219 N. C., 195, 13 S. E. (2d), 234, so that all matters in controversy growing out of the same subject of action may be settled in one action, Freeman v. Thompson, 216 N. C., 484, 5 S. E. (2d), 434, though the plaintiff in the action may be thus delayed in securing his remedy. Montgomery v. Blades, 217 N. C., 654, *240 9 S. E. (2d), 397. Joint tort-feasors are those who act together in committing a wrong, or whose acts, if independent of each other, unite in causing a single injury. Bost v. Metcalf, 219 N. C., 607, 14 S. E. (2d), 648. The right thus conferred by the statute is “rooted in and springs from the plaintiff's suit, but projects itself beyond that suit.” Godfrey v. Power Co., supra. The appellant contends, however, that, conceding the right of a defendant sued in tort to file a cross-complaint against one alleged to be a joint tort-feasor and to determine his contingent liability for contribution in the same action, the allegations of fact contained in the answer of his codefendants are not sufficient to entitle them to maintain a cross action against the appellant for that purpose, in this case. From an inspection of pleadings as set out in the record, it appears that at the time of the collision the plaintiff was a passenger in his own automobile and was being driven by his agent who was acting within the scope of his agency, and presumably under plaintiff’s control. Baird v. Baird, 223 N. C., 730. Under these circumstances any negligence on the part of the driver was in law the negligence of the plaintiff. Ballinger v. Thomas, 195 N. C., 517, 142 S. E., 761. Hence proof of negligence on the part of the driver proximately causing or contributing to the injury would constitute a complete bar to plaintiff’s action, would relieve the answering defendants of all liability, and afford no ground upon which to base an action for contribution. Nor is there any allegation of fact in the answer, or complaint, from which it could be inferred that H. Jerome Johnson, the driver, was at the time acting independently, or otherwise than solely in the relationship of agent of the plaintiff, his principal. We perceive no phase of the transaction under the allegations as now set out in the answer which would justify imputing contingent liability for contribution to the defendant H. Jerome Johnson. We think the appellant was entitled to have his demurrer sustained. The judgment overruling the demurrer is Reversed.