Abdella v. Stringfellow

PARKER, J. If the Stringfellows had brought an independent action against Morris and Hines to recover for any personal injuries and property damages incurred by the Stringfellows, their allegations as to negligence on the part of Morris and Hines might have sufficed to state a valid cause of action. Saunders v. Warren, 267 N.C. 735, 149 S.E. 2d 19. In such case Stringfellows’ action would have been based on the theory that Morris and Hines owed them a duty to warn of the presence of the Morris and Hines vehicles on the roadway under the circumstances disclosed by the pleadings and that negligence on the part of Morris and Hines in failing to perform this duty proximately caused the personal and property damages incurred by the String-fellows. Stringfellows’ complaint, however, was not filed in an independent action in which they sought recovery for any damages caused directly to them by reason of any breach of duty owed by Morris and Hines to the Stringfellows. It was filed under the authority of G.S. IB-8 (now replaced by Rule 14, Rules of Civil Procedure, G.S. 1A-1, [484] Rule 14) to obtain contribution from Morris and Hines on the theory that they were joint tort-feasors whose negligence proximately caused injuries to Abdella. As such, Stringfellows’ third party complaint states a cause of action only if the facts alleged therein disclose that Morris and Hines negligently breached some duty which they owed directly to plaintiff Abdella. This the third party complaint fails to do. Morris and Hines owed no duty to Abdella to warn him of the dangerous condition caused by the icy surface of the road and the stalled vehicles thereon. Abdella was as fully informed of these circumstances as were Morris and Hines. Nor did Morris and Hines owe to Abdella a duty to protect him from approaching vehicles by going to the top of the hill and warning the drivers of any approaching vehicles that Abdella was in a position of danger on the road ahead. If there was any negligence on the part of Morris and Hines in failing to give such a warning, then clearly Abdella shared in that negligence and would be barred from any recovery against Morris and Hines. The facts alleged in Paragraph 18 of the third party complaint do not disclose any basis for liability on the part of Morris and Hines for Abdella’s injuries. Therefore, appellants have failed to state a cause of action for contribution against Morris and Hines, and the order sustaining the demurrer is Affirmed. Campbell and HedeicK, JJ., concur.