Mann v. Virginia Dare Transportation Co.

HEDRICK, Judge. With respect to the appeal from the judgments in favor of plaintiffs, Virginia Dare states in its brief: “It will be observed that defendant Virginia Dare has not carried forward and discussed in its Brief Assignments of Error Nos. 1, 12, 13, 14, 15 and 16, all relating to the verdict and judgment rendered for plaintiffs, defendant Virginia Dare’s complaint on this appeal being that it made out a prima facie showing of liability against defendant Carolina Coach on the plea of indemnity and the plea for contribution . . . .” Virginia Dare has not brought forward and argued any exceptions relating to plaintiffs’ judgments against it. Nevertheless, we have examined the face of the record proper which supports the judgments. The cross-claim of defendant Virginia Dare against defendant Carolina is permitted by G.S. 1A-1, Rule 13 (g) of the Rules of Civil Procedure effective 1 January 1970. Compare Greene v. [260] Laboratories, Inc., 254 N.C. 680, 120 S.E. 2d 82 (1961) and Anderson v. Robinson, 2 N.C. App. 191, 162 S.E. 2d 700 (1968), affirmed 275 N.C. 132, 165 S.E. 2d 502 (1969). Virginia Dare’s exceptions present the question of whether the evidence, when considered in the light most favorable to it, was sufficient to require submission of the case to the jury as to its cross-claims against Carolina for indemnity or contribution. The rights of contribution and indemnity are mutually exclusive since the former assumes joint fault and the latter only derivative fault. Edwards v. Hamill, 262 N.C. 528, 138 S.E. 2d 151 (1964); 6 Strong, N. C. Index 2d, Negligence, § 11, p. 29. “There can be no indemnity among joint tort-feasors when both are actively negligent.” Greene v. Laboratories, Inc., 254 N.C. at 691, 120 S.E. 2d at 89. “It is a well settled rule of law that there can be no indemnity among mere joint tort-feasors. But this rule does not apply to a party seeking indemnity who did not participate in the negligent act, but is liable only by reason of a duty or liability imposed by law, or where the parties are not in pari delicto as to each other.” Newsome v. Surratt, 237 N.C. 297, 300, 74 S.E. 2d 732, 734 (1953). As to this case, the jury’s verdicts and the judgments entered thereon establish conclusively that Virginia Dare did “participate in the negligent act” which was one of the proximate causes of the bus accident and plaintiffs’ injuries. Therefore, no further consideration need be given appellant’s cross-claim for indemnity. However, the verdicts and judgments do not preclude further consideration of appellant’s cross-claim for contribution. Pearsall v. Power Co., 258 N.C. 639, 129 S.E. 2d 217 (1963). Virginia Dare’s cross-claim for contribution against Carolina is bottomed on the allegation that Carolina was negligent in that it delivered a bus to Virginia Dare’s driver in Norfolk when it knew or by the exercise of reasonable care should have known that the bus had a defective steering mechanism and that such negligence upon the part of Carolina was one of the proximate causes of the accident and injury to plaintiffs. Virginia Dare, in its answer, characterized the defect in the steering mechanism of the bus as “latent.” The expert witness for Virginia Dare, in his answer to a hypothetical question, related the defect complained of to the failure of the steering mechanism as follows: [261] “If the jury finds from the evidence and by its greater weight that at about 6:00 a.m. on September 17, 1968, Mr. Robert L. Gibbs obtained this particular bus from the garage of Carolina Coach Company in Norfolk, Virginia, and thereupon drove the same without difficulty to Manteo, North Carolina, a distance of about 113 miles; that thereafter, on the same day, the said Robert L. Gibbs drove said bus from Manteo, North Carolina, on an intended return trip to Norfolk, Virginia, and on said journey approached a left curve, traveling about 55 miles per hour, on highway # 34, about 45 miles from Manteo, North Carolina, he, the said Gibbs, having no difficulty in the operation of said bus on said trip prior thereto, but that upon his attempt to steer said bus around said left curve the front wheels of the bus did not respond to the turning of the steering wheel, and thereupon and immediately thereafter said bus traveled off the hard surface of said highway, along the shoulder, into the ditch, over and past a culvert underneath a private lane in said ditch, and thereafter coming to rest, based upon these assumed facts, and further based upon my findings from my personal examination of the steering system of said bus and the two bolts about which I have just testified, and my observations with respect to said two bolts, and what I found thereon, I have an opinion satisfactory to myself as to what could or might have caused the said steering system to fail when the said Gibbs at-temped to steer said bus around said left curve. My opinion is that the nuts, when they were placed on the bolts and tightened, were tightened to a point beyond the torque, or the point of pressure to tighten the bolts that is recommended, and that as a result the thread in the nut stripped, leaving the small pieces of the thread in the nut on the bolt, and the nut therefore became loose and would move back and forth to some extent, the cotter pin, which goes through the small hole at the end of the bolt, would have sheared, it is made of a very soft material, the pressure would shear this cotter pin, it is very small and made of very soft material, shear it off, and the connection is broken. The answer I just gave is my opinion as to whether that could or might have caused the failure of the steering system.” Thus, it is Virginia Dare’s contention that Carolina was negligent by delivering the bus to Virginia Dare when it knew, or [262] by the exercise of reasonable care should have known, that the nuts on the bolts holding the booster flanges together “were tightened to a point beyond the torque.” A bailor for hire of a motor vehicle has the duty to see that the motor vehicle is in good condition, and although he is not an insurer, he is liable for injury to the bailee or to third persons proximately resulting from a defective condition of the motor vehicle of which he had knowledge, or which by the exercise of reasonable care and inspection, he could have discovered. Roberts v. Memorial Park, 281 N.C. 48, 187 S.E. 2d 721 (1972); Hudson v. Drive It Yourself, Inc., 236 N.C. 503, 73 S.E. 2d 4 (1952); 1 Strong, N. C. Index 2d, Automobiles, § 23, p. 432. Assuming, arguendo, that the evidence, when considered in the light most favorable to Virginia Dare was sufficient to raise an inference that the defect in the steering mechanism existed when the bus was delivered to the driver in Norfolk on 17 September 1968 and that the defect in the steering mechanism was one of the proximate causes of the accident and injuries to plaintiffs, the question thus presented is whether the evidence was sufficient to raise an inference that the defect complained of was known or should have been discovered by the lessor by reasonable inspection. There is no evidence that Carolina had any actual knowledge of any defect in the steering mechanism of the bus. There is no evidence that the steering mechanism had given any difficulty whatsoever or that the torque of the nuts on the bolts holding the flanges together had been altered at any time while the bus was owned or in the possession of Carolina. In short, there is no evidence in the record that would put a reasonably prudent person on notice as to any defect in the steering mechanism. Virginia Dare contends the court erred in excluding certain testimony of its expert witness as to whether the defect complained of could have been discovered by a “competent or qualified mechanic.” We have carefully examined all of the excluded testimony of the expert together with all other evidence in the case and while some of the testimony of the expert witness might have been improperly excluded we are of the opinion that all the evidence, when considered in .the light most favorable to the cross-claimant, is insufficient to raise an inference that the lessor could have discovered the “latent defect” complained of by reasonable.inspection. [263] For the reasons stated, plaintiffs’ judgments against Virginia Dare and the judgment directing a verdict for Carolina as to Virginia Dare’s cross-claim for indemnity and contribution are Affirmed. Judge Graham concurs. Judge Vaughn dissents.