Norris v. Johnson , 246 N.C. 179 ( 1957 )

97 S.E.2d 773 (1957) 246 N.C. 179

Mrs. Millicent T. NORRIS
v.
King David JOHNSON, Original Defendant, and Charles S. Norris, Additional Defendant.

No. 527.

Supreme Court of North Carolina.

May 1, 1957.

Fletcher & Lake, Raleigh, for defendant appellant.

Nance, Barrington & Collier, Fayetteville, for defendant appellee.

RODMAN, Justice.

Defendant Norris, by appropriate assignment of error presents for determination the correctness of the ruling striking out his counterclaim. If he had the right to assert against Johnson in this action his claim for damages, his rights have been prejudicially restricted.

Appellee Johnson does not here contend that the counterclaim is subject to a demurrer for failure to state a cause of action or for misjoinder of parties and causes of action. He asserts that the claim of appellant Norris for damage to the automobile is in no way related to plaintiff's claim for personal injuries, and since it presents no defense to the cause being tried, it should be stricken. He cites in support of his motion Howell v. Ferguson, 87 N.C. 113; Horton v. Perry, 229 N.C. 319, 49 S.E.2d 734; and Wrenn v. Graham, 236 N.C. 719, 74 S.E.2d 232. First appearances might seem to support his view, but closer examination will demonstrate its fallacy. In the cases cited the named plaintiff was seeking to hold defendants for wrongs assertedly done to plaintiff. The rights of defendants inter se were of no concern to plaintiff; so defendants were not permitted to complicate and delay the action to plaintiff's detriment.

In this case Millicent T. Norris and Charles S. Norris do not, as between themselves, occupy the position of plaintiff and defendant. She seeks no redress against appellant and cannot obtain a judgment against him. Appellee Johnson could not, except for the statute, G.S. § 1-240, have insisted on appellant's appearance as a party. Clark v. Patapsco Guano Co., 144 N.C. 64, 56 S.E. 858; Doles v. Seaboard Air Line R. Co., 160 N.C. 318, 75 S.E. 722, 42 L.R.A.,N.S., 67; Bargeon v. Seashore Transportation Co., 196 N.C. 776, 147 S.E. 299.

The enactment of the contribution statute created as to parties jointly and severally liable a new right and ready means for the enforcement of that right. Hoft v. Mohn, 215 N.C. 397, 2 S.E.2d 23.

Now when some, but not all of the parties jointly and severally liable are sued, they are permitted in that action to sue those not originally joined. They are not required to seek permission from the original plaintiff. The right is theirs by virtue of the statute, G.S. § 1-240. The original defendants are, as to the new defendants, plaintiffs, and as such required to establish their right of action. Pascal v. Burke Transit Co., 229 N.C. 435, 50 S.E.2d 534.

The party brought in may, of course, assert any defense appropriate to the cause of action asserted against him. He may plead estoppel by settlement, Snyder v. Kenan Oil Co., 235 N.C. 119, 68 S.E.2d 805, a judgment binding the parties, Stansel v. McIntyre, 237 N.C. 148, 74 S.E.2d 345. It follows that relevancy does not relate to the claim of the original plaintiff but to the right of action asserted by the original defendant against the party whom he brings in. Defendant appellant was entitled to assert his counterclaim. Morgan v. Brooks, 241 N.C. 527, 85 S.E.2d 869; Grant v. McGraw, 228 N.C. 745, 46 S.E.2d 849; Powell v. Smith, 216 N.C. 242, 4 S.E.2d 524.

Appellant, at the conclusion of plaintiff's evidence, moved for nonsuit on defendant Johnson's cross action. The court was correct in denying the motion. That was not an appropriate time for the motion. Johnson, who was plaintiff as to appellant, had not then presented his case against his defendant.

At the conclusion of all of the evidence appellant again moved for nonsuit as to Johnson's cross action for that there was no evidence tending to establish the fact that appellant and appellee were joint tortfeasors and hence there could be no contribution.

The collision occurred at the intersection of Broad Street and Ellis Avenue in Dunn. Traffic is controlled at this intersection by a light hung over the center, installed and maintained by the town. Appellant's vehicle was traveling west on Broad Street. Johnson's truck was traveling north on Ellis Avenue. Each party offered evidence that the light, as he approached and entered the intersection, showed green on his side and hence red on the intersecting street. Each offered evidence from which the jury could find that he entered the intersection first in accord with the permission granted by the green light. Each offered evidence tending to show that he was traveling at a reasonable rate of speed. All agreed that the collision occurred at or near the center of the intersection. It is not asserted that the view of the drivers was obstructed. The jury might find from the evidence that one of the vehicles negligently entered the intersection when warned not to do so by a red light, but the operator of the other vehicle, by exercising a proper lookout, could and should have seen the disobedience to the signal command in time to avoid the collision. If so, the failure to maintain a proper lookout proximately causing damage created liability. Marshburn v. Patterson, 241 N.C. 441, 85 S.E.2d 683; Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25; Ward v. Bowles, 228 N.C. 273, 45 S.E.2d 354. The jury could, in its attempt to resolve the conflicts in the testimony, find that the operator of each motor vehicle was negligent, and that the negligence of each contributed to the collision and resulting damage. Hence, appellant's motion to nonsuit at the conclusion of all of the evidence was properly overruled.

It is not necessary to consider or discuss appellant's exceptions and assignments of error relating to the charge.

No exception has been taken to the judgment obtained by the plaintiff, Millicent T. Norris, against King David Johnson. That portion of the judgment is not under attack. It stands unaffected by the appeal.

The rights of appellant Norris and appellee Johnson must be determined at a trial where each is permitted to assert his claim and his defense. On the appeal of defendant Norris there is

Error.