Streater v. Marks , 267 N.C. 32 ( 1966 )

Lake, J.

In Greene v. Laboratories, Inc., 254 N.C. 680, 120 S.E. 2d 82, followed in Bass v. Lee, 255 N.C. 73, 120 S.E. 2d 570, this Court said:

“In an action against two defendants, as joint tort-feasors, may one defendant set up a plea for contribution against the co-defendant and thereby preclude dismissal of the co-defendant during the trial and before judgment (paragraph 10 of Seventh Further Answer and Defense) ?

“The answer is ‘No.' ”

In the Greene case, as here, one of the defendants, originally sued by the plaintiff, filed a further answer in which he alleged a cross-action against his original co-defendant for contribution in the event that the jury should find both of them negligent and liable to the plaintiff. Upon motion of the defendant against whom such cross-action was pleaded, the trial court struck from the answer the allegations asserting the cross-action for contribution. This Court affirmed, three justices dissenting, the majority opinion stating the question and the answer as above quoted. The majority opinion, quoting from Bell v. Lacey, 248 N.C. 703, 104 S.E. 2d 833, said:

“ 'This Court has uniformly held that where all the joint tort-feasors are brought in by a plaintiff and a cause of action is stated against all of them, such defendants under our statutes, G.S. 1-137 and G.S. 1-138, are permitted to set up in their respective answers as many defenses and counterclaims as they may have arising out of the causes of action set out in the complaint. However, they are not allowed to set up and maintain cross-actions as between themselves which involve affirmative relief not germane to the plaintiff’s action. * * * This is so, notwithstanding the fact that the defendants’ claim for damages may have arisen out of the same set of circumstances upon which the plaintiff’s action is bottomed.’ ” [Emphasis added.]

Here, McCartha contends that his cross-action for contribution against Marks does not fall within the rule announced in Greene v. Laboratories, Inc., supra, because the plaintiff’s complaint does not state a cause of action against his co-defendant Marks. Mc-Cartha, therefore, contends that the court below correctly denied Marks’ motion to strike McCartha’s further answer asserting the cross-action for contribution.

The premise upon which McCartha would reach this conclusion is unsound. The complaint does state a cause of action against Marks. Counsel for Marks so conceded in his oral argument in this Court, but we reach this conclusion independent of such concession.

In considering the sufficiency of a complaint, as against a demurrer on the ground that it does not state a cause of action, the complaint is to be liberally construed and every reasonable intendment and presumption in favor of the plaintiff is to be made. Hargrave v. Gardner, 264 N.C. 117, 141 S.E. 2d 36; Wilson v. Motor Lines, 207 N.C. 263, 176 S.E. 750; Burroughs v. Womble, 205 N.C. 432, 171 S.E. 616; Scott v. Insurance Co., 205 N.C. 38, 169 S.E. 801; Griffin v. Baker, 192 N.C. 297, 134 S.E. 651; Hoke v. Glenn, 167 N.C. 594, 83 S.E. 807.

The complaint alleges that Marks was negligent in that he failed to maintain a reasonable and proper lookout, and in that he operated his vehicle at a speed in excess of that which was reasonable and prudent under the prevailing conditions. There are also other alleged specifications of negligence by him which may possibly fall into the category of conclusions rather than allegations of ultimate facts. The complaint further alleges that these negligent acts of Marks and the alleged negligent acts and omissions of McCartha were concurrent proximate causes of the injuries sustained by the plaintiff in the collision.

It is true that the complaint also alleges that, as the automobiles of the two defendants “approached each other on the aforementioned curve,” the McCartha vehicle “came across the yellow mark center line and crashed head-on with great force and violence into the vehicle of defendant Adell Marks.” There is, however, no allegation in the complaint that this alleged crossing of the center line by McCartha was so sudden as to constitute an intervening cause, insulating the alleged negligence of Marks. It does not appear from the complaint that the curve was so sharp as to obstruct Marks’ view of the McCartha automobile as it approached. Construing the complaint liberally, as we are required to do in determining its sufficiency to resist a demurrer for failure to state a cause of action, we find nothing in it to lead to the conclusion that Marks, had he been maintaining a proper lookout and traveling at the proper speed, could not have discovered the obstruction in his path in time to avoid the collision from which the plaintiff’s injuries resulted.

The decisions cited to us by McCartha to support his contention that the plaintiff’s complaint does not state a cause of action against Marks are distinguishable. In each of those cases it appears affirmatively from the complaint, itself, that the negligence of one of the defendants was the sole proximate cause of the collision and, therefore, no cause of action was alleged against the other defendant. In Loving v. Whitton, 241 N.C. 273, 84 S.E. 2d 919, the plaintiff alleged that one defendant, proceeding on a servient street, in violation of the stop sign, drove into the intersection “directly in front of and into the path of” the vehicle of the other defendant. It thus appeared from the complaint, itself, that the negligence of the driver on the servient street was the sole proximate cause of the collision. In Troxler v. Motor Lines, 240 N.C. 420, 82 S.E. 2d 342, the complaint alleged that one defendant, having the green light, drove through the intersection at an excessive speed and the other defendant, facing the red light, entered the intersection, made a right turn and struck the first defendant’s vehicle in the rear. From these circumstances this Court concluded that the speed of the first defendant’s car was not a proximate cause of the collision. In Lewis v. Lee, 246 N.C. 68, 97 S.E. 2d 469, the complaint alleged that the vehicle of one defendant suddenly appeared on the highway on the wrong side of the road in front of the other defendant. Again, the Court held that the complaint showed the negligence of the first driver was the sole proximate cause. In Guthrie v. Gocking, 214 N.C. 513, 199 S.E. 707, the complaint alleged that the automobile of the plaintiff was following the automobile of one defendant when the vehicle of the other defendant, driving rapidly from the opposite direction and on the wrong side of the road, collided with the automobile of the first defendant and, as a result of that collision, struck the plaintiff’s vehicle. The Court said that it appeared from the complaint that the negligence, if any, of the defendant who was driving in the same direction as the plaintiff was not the proximate cause of the plaintiff’s injuries, observing that if he had gotten out of the path of the oncoming vehicle it would have collided with the plaintiff with even greater force than it did.

Thus, in all of the cases cited by the defendant McCartha in support of his contention that no cause of action is here stated against Marks, it appeared from the complaint that the negligence of only one defendant was the sole proximate cause of the collision. That does not appear from the complaint in this case. Consequently, the allegations of the plaintiff’s complaint do not remove this case from the rule of Greene v. Laboratories, Inc., supra.

The striking of McCartha’s third further answer asserting his cross-action for counterclaim does not deprive him of his right to contribution from Marks if, upon the trial of the present action, a verdict is rendered in favor of the plaintiff against McCartha alone, nor does it deprive him of the full benefit of the judgment which has been entered in the Mecklenburg action between McCartha and Marks.

In Gunter v. Winders, 253 N.C. 782, 786, 117 S.E. 2d 787, this Court said:

“A judgment does not conclude parties to the action who are not adversaries and who do not have an opportunity to litigate their differences inter se. * * * Issues and admissibility of evidence are determined by the pleadings. Unless defendants have opportunity to cross-plead, evidence relating exclusively to their differences is inadmissible — result, an insufficient opportunity to be heard.”

Thus, it is only where the claim for contribution is injected into the plaintiff’s action through a cross-action by an original defendant against an additional defendant that a judgment in such action against only one defendant can be res judicata as between the alleged joint tort-feasors. See: Hill v. Edwards, 255 N.C. 615, 122 S.E. 2d 383. McCartha and Marks were parties to the Mecklenburg action. It was there determined that the negligence of each was a proximate cause of the collision in which the present plaintiff was injured. Therefore, as to their rights against each other, the judgment in the Mecklenburg action is a final determination and that issue may not again be litigated. Stansel v. McIntyre, 237 N.C. 148, 74 S.E. 2d 345. Thus, if, in the present action, the plaintiff recovers from either Marks or McCartha, and fails to recover from the other, the defendant against whom she recovers judgment may, upon paying the judgment, maintain an action against the other defendant herein for contribution. In that action the Mecklenburg judgment would be conclusive upon the question of their being joint tort-feasors with the right of and liability to contribution as between themselves.

The denial of the motion by Marks to strike the third further answer of McCartha was in conflict with the decision in Greene v. Laboratories, Inc., supra.

Reversed.

Moore, J., not sitting. Pless, J., took no part in the consideration or decision in this case.