Jones v. Collins

294 S.E.2d 384 (1982)

Edward O. JONES, Plaintiff, v. E. L. COLLINS, Defendant and Third-Party Plaintiff, Archie Thomas Webb, Jr., Third-Party Defendant.

No. 8113SC926.

Court of Appeals of North Carolina.

September 7, 1982.

*385 Walton, Fairley & Jess by Ray H. Walton, Southport, for plaintiff-appellant.

Stuart V. Carter, Wilmington, for defendant-appellee.

WEBB, Judge.

The plaintiff assigns error to the submission of the negligence issue as to Archie Thomas Webb, Jr. after the court had dismissed the third-party action against him. The plaintiff argues that the third-party claim, under which the original defendant alleged the negligence of Webb was the cause of the accident, was dismissed. This established Webb was not negligent and it was error to let the jury find he was negligent.

We do not believe the dismissal of the third-party claim against Webb was a judicial determination that Webb was not negligent. G.S. 1A-1, Rule 14 provides in part:

"(a) When defendant may bring in third party.At any time after commencement of the action a defendant, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him."

Under this rule, an original defendant may bring in a third-party defendant for contribution to the original defendant for a part of his liability to the plaintiff. If the original defendant is not liable to the original plaintiff, the third-party defendant is not liable to the original defendant. In this case the parties stipulated that Archie *386 Thomas Webb, Jr. was acting as the agent of the plaintiff at the time of the collision. If he were the plaintiff's agent, the plaintiff would be barred from recovery by Mr. Webb's negligence under the doctrine of respondeat superior. See Morrow v. Railroad, 213 N.C. 127, 195 S.E. 383 (1938). The court was correct in dismissing the thirdparty claim because if Webb were negligent, the plaintiff could not recover of the original defendant and if the original defendant were not liable to plaintiff, the original defendant could not recover of the third-party defendant. The dismissal of the third-party claim did not determine the question of Webb's negligence. That was done when the jury answered the issue of Webb's negligence which was submitted to them.

No error.

WELLS and WHICHARD, JJ., concur.