Hayes v. City of Wilmington , 243 N.C. 525 ( 1956 )

BarNhill, C. J.,

dissenting: In cases such as Hayes v. Wilmington, 239 N.C. 238, 79 S.E. 2d 792, where the only exceptive assignment of error is directed to alleged error in the judgment in that the judgment is made to rest on an erroneous conclusion of law, it is well to read the judgment before stating that a substantial and material part of the opinion in the case is obiter dictum as is here done.

In that case the presiding judge not only concluded that the facts alleged by Cooper disclose as a matter of law that his conduct constituted an intervening act of a responsible third party which was not foreseeable by the power company and which completely insulated the negligence, if any, of the power company, but he also, in effect, wrote an opinion setting forth that conclusion and cited pertinent opinions of this Court in support thereof. He wrote in part as follows:

“. . . It is common knowledge that gas lines, such as are described by the defendant Cooper, are in common use in all of the large cities and towns. They are buried beneath the surface of the earth and are harmless if let alone. If the gas pipes in question in this case were buried too near the surface of the ground, that, in itself, could not make them an active source of danger. If the power companies were negligent at all, such negligence was passive and inactive; it was dormant, and in order to become a source of danger the intervention of an active negligent act became necessary. Following the reasoning laid down in WhaetoN ON NegligeNCB, Section 136: Supposing that if it had not been for the intervention of a responsible third party, the defendant’s (Power Companies’) negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? The question must be answered in the negative; for the reason that causal connection between negligence and damage is broken by the interposition of independent human action. Say I am negligent on a particular subject matter. Another person, moving independently, comes in, and either negligently or maliciously so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a nonconductor, and insulates my negligence, so that I cannot be sued for the mischief which the person so intervening directly produces. He is the one who is liable to the person injured.

“To the same effect see:

Butner v. Spease 217 NC 82

Smith v. Sink 211 NC 725

Hinnant v. R. R. 202 NC 489

Guthrie v. Gocking 217 NC 476

“See also in particular: Baker v. R. R. 205 NC 333.

“So that here we have this state of fact: The two power companies, or, rather the Tide Water Power Company, constructed a system of gas lines under the streets of the City of Wilmington, in order to supply gas to the citizens. Connecting pipes carried the gas from the Mains in the streets into the residences of citizens. These pipes, if left alone, in their original condition, were not dangerous at all. There was no way that the Power Companies could foresee that such a disaster would occur as did occur on December 31, 1951.

“But somebody Slipped a Cog, an intervening force, moving independently, comes in, one of the gas pipes is twisted out of position so that the connection in the residence of plaintiff’s intestate is broken, gas escapes, is ignited, and two human beings are launched into eternity from a terrific explosion which followed.

“The court cannot see, under the facts as alleged in the pleadings of the defendant Cooper, that the two power companies can be held liable for what happened. . . .”

He thereupon entered judgment on the conclusion thus made, striking the names of the power companies as additional parties defendant. Cooper excepted and appealed, and in his brief on appeal he devotes approximately two pages of his brief to an attempt to refute the conclusion that his conduct insulated the negligence of the power company as alleged by him. That question is likewise discussed at some length in the brief of the appellees.

That is to say, both the appellant and the appellees recognized that the judgment entered could not be reversed unless the appellant convinced this Court that the trial judge erred in his conclusion on the question of insulated negligence.

Under these circumstances I am at a loss to conceive how this Court could either affirm’or reverse the judgment under review in that case without considering and deciding whether the judge was correct in arriving at the conclusion on which he made his judgment rest. Yet it is now said that the discussion of that question in Hayes v. Wilmington, supra, is obiter dictum and wholly unnecessary to that decision. To this I cannot agree, and as I still hold to the opinion there expressed, I vote to affirm.

It is well to note that the procedure pursued on the original hearing and the dismissal of the additional defendants on the grounds that their negligence, if any, was insulated is in accord with recent decisions of this Court. Potter v. Frosty Morn Meats, Inc., 242 N.C. 67; Loving v. Whitton, 241 N.C. 273, 84 S.E. 2d 919; Troxler v. Motor Lines, 240 N.C. 420, 82 S.E. 2d 342, and cases cited; McLaney v. Motor Freight, Inc., 236 N.C. 714, 74 S.E. 2d 36.

Since the foregoing was written, the majority opinion has been substantially revised. Even so, I shall permit my dissent to remain as it is with the following addition to meet the change of position in the majority opinon.

When Cooper failed to file a petition for rehearing, the original opinion became the law of the case. To avoid the effect of his failure so to do and to justify the novel procedure adopted to grant a rehearing, the majority now undertake to treat the original notice and motion to strike as a demurrer ore terms. Judge Grady labeled his judgment “Judgment ON MotxoN of (power companies) and on DemuRRER Ore TeNUS to Further ÁNSwer and Cross-Bill of S. E. Cooper.” The motion of the power companies was a motion to strike for the reason the cross action does not allege a cause of action which may be pleaded under the terms of G.S. 1-240. There is no notation of a demurrer ore terms in the record or any reference thereto except as noted above.

An original party defendant may not have a third party made an additional defendant for the purpose of seeking contribution until or unless he alleges a cross action which the plaintiff might have pleaded against such third party if he had elected so to do. Thus we must look to the complaint as well as to the cross action alleged to determine whether or not the original defendant has alleged a cross complaint which entitles him to have the third party made a party defendant. That the cross complaint does not constitute a cause of action which might have been pleaded by the party plaintiff is the one ground which entitles the third party to have his name stricken. If the cross action does allege such a cause of action, the motion to strike should be denied. If it does not allege such a cause of action, the name of the third party should be stricken as a matter of right.

The two pleadings — a motion to strike and a demurrer ore terms■ — ■ are essentially different in purpose and effect. When a motion to strike is allowed, the movant goes out of court and is no longer a party to the action. On the other hand, when a demurrer ore terms for failure to state a cause of action is sustained, the pleader may amend his pleading so as to allege sufficient facts to constitute a good cause of action, and the demurrant must then answer. On the original appeal all the parties treated the motion just as it was — a motion to strike. The majority now seek to make it a demurrer-ore temos so as to justify the novel procedure adopted to reverse the original opinion without saying so. If a majority of the Court has determined that we were in error in our conclusion in the original opinion, we should say so and be done with it. We are human, and, as others, we make mistakes, and when we conclude that we have made a mistake, we should not hesitate to admit the fact without attempting to explain it away without admission of error. It does not take nineteen pages to admit an error in one opinion.

It is stated that what was said in the original opinion about insulated negligence and primary and secondary liability was obiter dictum. Oddly enough, the majority opinion now devotes six to eight times as much space to a discussion of these two doctrines as was used in the original opinion.

It might not be amiss to make further comment on other statements contained in the maj ority opinion. However, if the Court is to adopt this unusual and indirect method of granting a rehearing of the former decision, any discussion of those questions would serve no useful purpose.

I dissent for the reasons that:

(1) I am still of the opinion that the admitted conduct of Cooper insulated the negligence, if any, of the power companies. Gas Co. v. Montgomery Ward & Co., 231 N.C. 270, 56 S.E. 2d 689, is directly in point except that the facts here alleged by Cooper and plaintiff make out a stronger case of insulated negligence than does the evidence in the Gas Co. case.

(2) The majority attempt to treat the motion to strike as a demurrer; and

(3) When Cooper failed to petition for a rehearing, the original opinion became the law of the case, and I cannot concur in the novel method now adopted to avoid the effect of that opinion. It will surely rise up to plague us in the future.