Greene v. Charlotte Chemical Laboratories, Inc.

120 S.E.2d 82 (1961)

254 N.C. 680

George L. GREENE, Plaintiff, v. CHARLOTTE CHEMICAL LABORATORIES, INC., a corporation, and Suggs Wrecking & Removal Company, Inc., a corporation, Defendants.

No. 235.

Supreme Court of North Carolina.

May 24, 1961.

*86 Uzzell & Dumont, Asheville, Craighill, Rendleman & Clarkson, Charlotte, for defendant Charlotte Chemical Laboratories, Inc., appellant.

William T. Grist, Warren C. Stack and William E. Graham, Jr., Charlotte, for plaintiff, appellee.

Clayton & London, Pierce, Wardlow, Knox & Caudle, Charlotte, for defendant Suggs Wrecking & Removal Company, Inc., appellee.

*87 MOORE, Justice.

Five questions are here presented for determination.

(1) Did the court below err in striking from the amended answer of defendant Laboratory Exhibit A (the contract between Suggs and Laboratory) and the references thereto contained in paragraphs 2, 3, 4 and 5(d) of the Seventh Further Answer and Defense?

The provisions of the contract requiring Suggs to carry liability insurance for the protection of Laboratory are not relevant or material to plaintiff's cause of action or to any defense available to Laboratory. Any reading of these provisions or reference thereto in the presence of the jury would, over objection, constitute prejudicial error. The fact that defendants in a negligence action are protected by liability insurance can throw no light on the question of negligence or other circumstances of the accident and is inadmissible in evidence. Stansbury: North Carolina Evidence, s. 88, p. 163. Nothing should remain in a pleading, over objection, which is incompetent to be introduced in evidence. Daniel v. Gardner, 240 N.C. 249, 251, 81 S.E.2d 660. A policy of liability insurance is for the protection and indemnity of those insured by it, and in an action by an injured party against insured all references to such insurance is prejudicial, and all such references should be stricken from the pleadings. Jordan v. Maynard, 231 N.C. 101, 103, 56 S.E.2d 26.

The contract, Exhibit A, not only requires Suggs to carry liability insurance for Laboratory's protection but specifies minimum limits. If the insurance is injected into the case, it can conceivably prejudice both plaintiff and Suggs. A party to an action is entitled to have stricken irrelevant matters which are prejudicial to him. Council v. Dickerson's, Inc., 233 N.C. 472, 476, 64 S.E.2d 551; Patterson v. Southern R. R., 214 N.C. 38, 42, 198 S.E. 364.

Furthermore, Suggs' agreement to hold Laboratory "harmless from any and all loss or liability of any nature in connection with the demolition of said buildings and any of its activities in connection therewith" is a matter which concerns Suggs and Laboratory only. Plaintiff is not privy thereto. Therefore, it is not germane to plaintiff's cause of action, and the determination of the rights and liabilities of defendants with respect to this agreement of indemnity is not necessary to a conclusion of plaintiff's cause of action. Only matters relevant to the original or primary action in which all parties have a community of interest may be litigated. Wrenn v. Graham, 236 N.C. 719, 721, 74 S.E.2d 232; Montgomery v. Blades, 217 N.C. 654, 656, 9 S.E.2d 397.

In Clark v. Pilot Freight Carriers, 247 N.C. 705, 102 S.E.2d 252, 255, an original defendant set up a cross-action against an additional defendant and alleged an implied contract to indemnify original defendant with respect to injuries to original defendant's employees. The trial court allowed the motion of additional defendant to strike the cross-action. This Court affirmed the ruling and said: "* * * it was discretionary with the trial judge as to whether or not (original defendant) would be permitted to litigate its claim under the implied contract of indemnity against (additional defendant) in this action."

In Gaither Corporation v. Skinner, 238 N.C. 254, 77 S.E.2d 659, 661, the owner of a building sued his contractor for breach of contract because of defects in a roof. Contractor sought to join his subcontractor (who had installed the roof) as an additional party defendant, on the ground that the subcontractor had failed to do the work according to specifications and was therefore liable to the owner and contractor. Contractor asked for recovery over against subcontractor. The trial court refused to make the subcontractor an additional party defendant. This Court sustained the ruling of the trial court and declared: "The plaintiff has elected to pursue his action *88 against the contractor with whom he contracted in order to recover damages for an alleged breach of that contract, and plaintiff should be permitted to do so without having contested litigation between the contractor and his sub-contractor projected into the plaintiff's lawsuit." Accord: Board of Education of Perquimans County v. Deitrick, 221 N.C. 38, 18 S.E.2d 704.

In Eledge v. Carolina Power & Light Co., 230 N.C. 584, 55 S.E.2d 179, the original defendant set up a cross-action based on an indemnity contract against additional defendants. This Court affirmed the ruling of the trial court in striking the cross-action.

A cause of action independent of and unrelated to the original and primary action may not be litigated in the latter action. Wright's Clothing Store v. Ellis Stone & Co., 233 N.C. 126, 131, 63 S.E.2d 118.

Laboratory contends that it has the right to set out the contract in full inasmuch as the contract is referred to in the complaint. The reference in the complaint is only for the purpose of explaining the presence of Suggs on the premises. Portions of a contract may be relevant and competent, and portions immaterial and incompetent, in a suit not based on the contract. A pleading should contain allegations of ultimate relevant facts, not evidential facts. G.S. § 1-222. Even in a suit on a contract, the contract need not be set out in full in the pleadings. City of Wilmington v. Schutt, 228 N.C. 285, 45 S.E.2d 364.

In the instant case relevant parts of the contract may be pleaded and offered in evidence, but not irrelevant and prejudicial provisions. The portions of the contract which tend to explain Suggs' presence and activities on the premises of Laboratory on Templeton Avenue are competent and material, also the portion tending to show Laboratory's ownership of and relation to the premises and property. For this reason the allegations of paragraphs 3 and 4 of the Seventh Further Answer and Defense are permissible and should not have been stricken. We express no opinion as to whether or not the facts alleged in these paragraphs conform to pertinent terms of the contract.

Paragraph 5(d) of the Seventh Further Answer and Defense contains a mere conclusion of the pleader, that Suggs "negligently failed to comply with the terms and provisions of the written contract." The Seventh Further Answer and Defense fails to state any facts upon which the conclusion is based. Furthermore, an omission to perform a contractual obligation is never a tort unless such omission is also the omission of a legal duty. Council v. Dickerson's, Inc., supra; Miller's Mutual Fire Insurance Association of Alton, Illinois v. Parker, 234 N.C. 20, 23, 65 S.E.2d 341.

(2) Did the court err in sustaining defendant Suggs' demurrer ore tenus to defendant Laboratory's plea (paragraph 8 of the Seventh Further Answer and Defense) that Suggs had the "last clear chance" to avoid the accident and injury to plaintiff?

The doctrine of last clear chance cannot be invoked as between defendants concurrently negligent. 38 Am.Jur., Negligence, § 227, p. 912. The doctrine arises only when plaintiff is guilty of contributory negligence, and one defendant may not resist recovery by plaintiff on the ground that a co-defendant had the last clear chance to avoid the accident. Taylor v. Rierson, 210 N.C. 185, 189, 185 S.E. 627. The doctrine has application only as between plaintiff and a defendant. The doctrine as applied in this jurisdiction is defined and explained in Irby v. Southern R. R., 246 N.C. 384, 391, 98 S.E.2d 349, 70 A.L.R.2d 1; and Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 448, 35 S.E.2d 337.

Under the facts as alleged in the instant case the last clear chance doctrine is not available, even to plaintiff. It is certainly not a proper pleading for defendant Laboratory *89 since it has not set up a counterclaim. "Viewed as a phase of the principle of proximate cause, the doctrine of last clear chance negatives an essential element of contributory negligence by rendering plaintiff's negligence a mere condition or remote cause of the accident." 38 Am.Jur., Negligence, § 216, p. 903.

Laboratory contends that the allegation of "last clear chance" is an affirmative defense and Suggs is in no position to question it. As already stated, it does not arise in this case. But, as Laboratory erroneously seeks to apply it, the plea proposes to place responsibility on Suggs and to relieve Laboratory. It is true that "a mere defense made by one codefendant is not subject to demurrer by the other defendant * * *." Bargeon v. Seashore Transportation Co., 196 N.C. 776, 777, 147 S.E. 299, 300. But an irrelevant allegation by one defendant may be stricken by a co-defendant when prejudicial to the latter. Council v. Dickerson's, Inc., supra.

The court properly sustained the demurrer ore tenus.

(3) Did the court err in striking paragraph 9 of the Seventh Further Answer and Defense in which defendant Laboratory alleges that its negligence, if any, imposes only secondary liability and that defendant Suggs is primarily liable?

Where one joint tort-feasor is only passively negligent, but is exposed to liability through the positive acts and actual negligence of the other, the parties are not in equal fault as to each other, though both are equally liable to the injured party. Where one does the act which produces the injury, and the other does not join in the act, but is thereby exposed to liability and required to pay damages, the latter may recover against the principal delinquent, and the court will inquire into the real delinquency and place the ultimate liability upon him whose fault was the primary cause of the injury. Johnson v. City of Asheville, 196 N.C. 550, 553, 146 S.E. 229. See also Kimsey v. Reaves, 242 N.C. 721, 89 S.E.2d 386; Bost v. Metcalfe, 219 N.C. 607, 14 S.E.2d 648. The inquiry as to primary and secondary liability, when properly pleaded and supported by evidence, is germane to plaintiff's cause of action. Wright Clothing Store v. Ellis Stone & Co., supra. The entry of judgment fixing primary and secondary liability as between joint tort-feasors is sanctioned by statute G.S. § 1-222. Bell v. Lacey, 248 N.C. 703, 705, 104 S.E.2d 833; Bowman v. City of Greensboro, 190 N.C. 611, 130 S.E. 502.

A defendant may plead as many defenses as he has, and it is not required that the defenses be consistent with each other. Freeman v. Thompson, 216 N.C. 484, 5 S.E.2d 434.

"The doctrine of primary-secondary liability is based upon a contract implied by law. Hunsucker v. High Point Binding & Chair Co., 237 N.C. 559, 75 S.E.2d 768. There can be no implied contract where there is an express contract between the parties in reference to the same subject matter. (Citing cases)." Crowell v. Eastern Air Lines, 240 N.C. 20, 34, 81 S.E.2d 178, 189. The doctrine of primary-secondary liability "is based upon a contract implied in law from the fact that a passively negligent tort-feasor has discharged an obligation for which the actively negligent tort-feasor was primarily liable." ibid. If there is an express contract of indemnity, the indemnitee is relegated to his contract, a matter not germane to plaintiff's tort action.

In the instant case there is an express contract between Suggs and Laboratory whereby Suggs undertakes to protect Laboratory from any negligence of Suggs involved in the demolition of the building. Therefore the doctrine of primary-secondary liability does not arise. Furthermore, plaintiff alleges that both defendants were actively negligent. There can be no indemnity among joint tort-feasors when both are actively negligent. Newsome v. Surratt, *90 237 N.C. 297, 300, 74 S.E.2d 732. It is also true that the doctrine of primary-secondary liability does not arise where one defendant alleges sole responsibility of his co-defendant. Ballinger v. Thomas, 195 N.C. 517, 522, 142 S.E. 761.

The court did not err in striking paragraph 9 of the Seventh Further Answer and Defense.

(4) 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." The question was definitely and clearly decided in Bell v. Lacey, supra, in which many decisions of this Court are collected and reviewed. This Court there declared [248 N.C. 703, 104 S.E.2d 835]:

"At common law, no right of contribution existed between or among joint tort-feasors who were in pari delicto. The right is purely statutory with us and its use necessarily depends upon the terms and provisions of the statute. * * *

"When negligence is joint and several, the injured party may elect to sue either of the joint tort-feasors separately, or any or all of them together. * * *

"When a plaintiff elects to sue one or more joint tort-feasors, but not all of them, the others are not necessary parties and plaintiff cannot be compelled to pursue them. * * * Nor can an original defendant in such action use G.S. § 1-240 to compel plaintiff to join issue with a defendant he has not elected to sue. In such case, if an original defendant avails himself of the provisions of the statute for contribution, he cannot rely upon any liability of the party he has brought in to the original plaintiff, but must recover, if at all, upon the liability of such party to him. * * *

"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.

"On the other hand, where the plaintiff does not bring his action against all the joint tort-feasors, and an original defendant sets up a cross-action against a third party and has him brought in as an additional defendant, under the provisions of G.S. § 1-240, for contribution, such original defendant makes himself a plaintiff as to the additional party defendant. * * *

"Ordinarily, such additional party defendant has no cause of action stated against him except that asserted in the cross-action and set out in the cross-complaint. Hence, the additional party defendant is under no obligation to answer any allegations in the original complaint, but only those alleged against him in the cross-complaint. * *"

However, when the plaintiff, as in the instant case, proceeds against two or more parties, as joint tort-feasors, each is entitled to contribution from the other or others if there is a judgment of joint and several liability against them. G.S. § 1-240. But during the course of the trial each is a defendant as to plaintiff only, and neither of them may preclude the dismissal of the other or others if plaintiff fails to make out a prima facie case as to them. See Loving v. Whitton, 241 N.C. 273, 276, 84 S.E.2d 919.

*91 That portion of the prayer for relief asking for contribution was properly stricken together with paragraph 10 of the Seventh Further Answer and Defense.

(5) Defendant Suggs moved to strike portions of defendant Laboratory's original answer, including paragraphs 5(d) and 11 of the Fifth Further Answer and Defense. This motion was heard before Craven, S. J., 20 September 1960. Judge Craven struck parts of the original answer but did not strike paragraphs 5(d) and 11 of the Fifth Further Answer and Defense. The record does not disclose any exception to Judge Craven's order by defendant Suggs. Laboratory brought these paragraphs forward verbatim in its amended answer, as paragraphs 5(d) and 10 of the Seventh Further Answer and Defense. Suggs again moved to strike these particular paragraphs, among others. They were stricken from the amended answer by Judge Hooks in the order now in controversy.

Defendant Laboratory contends that Judge Hooks had no authority to vacate the order of Judge Craven with respect to the paragraphs in question.

No appeal lies from one superior court judge to another. Wall v. England, 243 N.C. 36, 39, 89 S.E.2d 785. A judge has no power to review a judgment rendered at a former term upon the ground that such judgment is erroneous. Cameron v. McDonald, 216 N.C. 712, 715, 6 S.E.2d 497; Dail v. Hawkins, 211 N.C. 283, 284, 189 S.E. 774; Wellons v. Lassiter, 200 N.C. 474, 478, 157 S.E. 434. A judge of superior court is without authority to review and vacate orders or judgments, not merely interlocutory, entered in the cause by another judge of superior court. Cuthbertson v. Burton, 251 N.C. 457, 459, 111 S.E.2d 604.

An order or judgment is merely interlocutory if it does not determine the issues but directs some further proceeding preliminary to final decree. Such an order or judgment is subject to change by the court during the pendency of the action to meet the exigencies of the case. But an order or judgment which affects some substantial right claimed by a party may not be modified or vacated by another judge on the ground that it is erroneous. Relief from an erroneous judgment is by appeal to the Supreme Court. Russ v. Woodard, 232 N.C. 36, 59 S.E.2d 351.

In Wall v. England, supra, an order striking certain allegations from an answer was entered at term by the presiding judge, with leave to file amended answer or other pleading. No exception was taken. Defendant filed an amendment to his answer. Plaintiff again moved to strike. The court found that the amendment contained the identical matter stricken in the first instance and allowed the motion to strike. Defendant appealed. In holding that defendant was bound by the ruling in the first instance, this Court said: "If the ruling of the Judge of Superior Court were erroneous, the remedy of defendant was to except thereto and appeal to Supreme Court. And upon failure of defendant to except and appeal the judgment becomes, not so much (as) res judicata, as the law of the case." [243 N.C. 36, 89 S.E.2d 787].

The ruling of Judge Hooks was legally correct, but erroneous nevertheless. He was without authority to overrule another superior court judge. Even so, the paragraphs in question are inapplicable and should have been stricken in the first instance. The Supreme Court has supervisory jurisdiction over the lower courts and will exercise this jurisdiction in order that the case may be tried on the correct theory below and unnecessary delay in the administration of justice be thereby prevented. Constitution of North Carolina, Article IV, section 8. Terrace, Inc., v. Phoenix Indemnity Co., 243 N.C. 595, 91 S.E.2d 584. The order of Judge Hooks with respect to these paragraphs will not be disturbed.

The order of Judge Hooks as to paragraphs 3 and 4 of the Seventh Further *92 Answer and Defense is reversed. In all other respects it is affirmed.

Modified and affirmed.

BOBBITT, Justice (dissenting in part).

In my opinion, paragraph 10 of the Seventh Further Answer and Defense, and paragraph 2 of the prayer for relief, should not have been stricken, and in these respects the order of the court below should be reversed.

In the Court's opinion, this question is posed: "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 the Seventh Further Answer and Defense)?" The Court answers, "No." In my opinion, the correct answer is, "Yes."

In Bell v. Lacey, 248 N.C. 703, 104 S.E.2d 833, cited by the Court, the plaintiff alleged he received personal injuries proximately caused by the collision of an automobile operated by Miss Lucy Lacey and an automobile owned by Vincent Walter Christopher and operated by Larry Cecil Christopher. He sued Miss Lacey and the Christophers, alleging the collision and his injuries were proximately caused by their joint and concurrent negligence. Answering, Miss Lacey denied negligence on her part and alleged, conditionally, in the event she were found negligent, the codefendants Christopher were joint tort-feasors and, under G.S. § 1-240, she was entitled to contribution from them in respect of any recovery plaintiff obtained against her.

Miss Lacey's right to allege such cross action for contribution was not challenged.

The Christophers, in reply to Miss Lacey's cross action for contribution, alleged the collision was caused solely by her negligence. Thereafter, they alleged two cross actions against Miss Lacey for affirmative relief, one for $300.00 for damages to the Christopher car, the other for $5,000.00 for personal injuries received by the driver thereof.

The hearing was on Miss Lacey's motion to strike the Christophers' said cross actions for affirmative relief. Judgment allowing Miss Lacey's said motion was affirmed.

Under Bell v. Lacey, supra, and cases cited therein, where two defendants are sued jointly by the plaintiff, neither may allege a cross action against the other for affirmative relief. Such a cross action is not germane to the plaintiff's claim. But Bell v. Lacey, supra, is not authority for the proposition that a defendant may not allege, conditionally, that his codefendant is a joint tort-feasor from whom, under G.S. § 1-240, he is entitled to contribution in respect of any amount plaintiff may recover against him. A recovery by plaintiff is a prerequisite to such cross action.

An original defendant may, under G.S. § 1-240, join an additional party and allege, conditionally, a cross action for contribution. At the close of the plaintiff's evidence, the original defendant moves for judgment of nonsuit. The only question then before the court is whether the evidence is sufficient for submission to the jury as between the plaintiff and the original defendant. If the motion is allowed, this ends the case since the cross action for contribution presupposes a recovery by plaintiff against the original defendant. If the motion is overruled, the original defendant may offer evidence. The original defendant's cross action for contribution may not be dismissed until the original defendant has had opportunity to offer evidence in support of such cross action. Norris v. Johnson, 246 N.C. 179, 97 S.E.2d 773. If an original defendant may join an additional defendant and allege such cross action for contribution, I perceive no sound reason why he may not so allege where the codefendant is already a party to the action.

In Smith v. Kappas, 218 N.C. 758, 12 S.E.2d 693, 699, plaintiff sued Kappas and *93 the Straus Company as joint tort-feasors. Over the objection of the Straus Company the court permitted plaintiff, before plaintiff had concluded his evidence, to take a voluntary nonsuit as to Kappas. Straus Company, in its original answer, did not allege, conditionally, it was entitled to contribution from Kappas but made such allegation in an amended answer. The opinion contains this statement: "In the original answer in the present action no demand was made for affirmative relief, but before the trial an amended answer was filed by the Straus Company, Inc., which we think sufficient to have Kappas held as a party defendant under N.C.Code, 1939 (Michie), sec. 618." (Our italics) C.S. 618 is now codified as G.S. § 1-240. Based on this factual situation, the court held that, upon Straus' demand for contribution against Kappas, his codefendant, it was error to permit plaintiff to take a voluntary nonsuit as to Kappas and awarded a new trial.

In Smith v. Kappas, 219 N.C. 850, 15 S.E.2d 375, a petition to rehear was allowed on the ground the record did not support the quoted factual statement but showed Straus Company "did not tender its proposed amended answer and move that it be permitted to file the same until after verdict. Nor did it request that Kappas be made a party defendant, as a joint tortfeasor, prior to verdict." On rehearing, the court overruled the exception of Straus Company on the ground it had failed to assert in apt time its alleged cause of action against Kappas for contribution.

In Canestrino v. Powell, 231 N.C. 190, 56 S.E.2d 566, the plaintiff sued the Receivers of the Seaboard Air Line Railway Company and Fred W. Staudt, trading and doing business as Staudt's Bakery, alleging he was injured by the joint and concurring negligence of said defendants. The Receivers' demurrer to the complaint was sustained on the ground it did not allege facts sufficient to constitute a cause of action against the Receivers. Upon failure of plaintiff to amend his complaint in respect of allegations against the Receivers, the action, as to the Receivers, was dismissed. Thereafter, Staudt answered, denying negligence and alleging, conditionally, a cross action against the Receivers for contribution; and, upon Staudt's motion, the Receivers were again made parties. The Receivers then demurred to Staudt's cross complaint for contribution. It was held that Staudt's cross complaint did allege facts sufficient to constitute a cause of action for contribution and that the Receivers' demurrer to said cross complaint was properly overruled.

In my opinion, the decisions in Smith v. Kappas, supra, and in Canestrino v. Powell, supra, are authority for the proposition that where two defendants are sued jointly by the plaintiff, one defendant may allege, conditionally, a cross action against his codefendant for contribution. If he elects to do so, the procedure is as follows: If, when plaintiff has rested his case, the evidence is sufficient for submission to the jury as to defendant A (plaintiff in the cross action for contribution) but not as to defendant B, judgment of nonsuit as to plaintiff's action against defendant B should then be entered. Even so, the action as to defendant B should not be dismissed. Defendant A should be permitted to offer evidence in support of his cross action against defendant B for contribution. The action as to defendant B in respect of said cross action for contribution should be dismissed only if defendant A fails to offer evidence sufficient to support the allegations of his cross complaint.

The question considered in Bell v. Lacey, supra, was quite different from that here presented. This Court had held in Norris v. Johnson, supra, and cases cited therein, that, where the plaintiff sued one defendant and the original defendant joined an additional defendant for contribution under G.S. § 1-240, the additional defendant could assert a cross action against the original defendant for affirmative relief. In Bell v. Lacey, supra, the Court refused to extend this rule to a situation where plaintiff had sued both defendants. Here, we are not *94 concerned with cross actions by one defendant against his codefendant for affirmative relief, that is, for the recovery of damages by the plaintiff in said cross action from the defendant therein, but are concerned only with a cross action for contribution as permitted by G.S. § 1-240.

The foregoing is in accord with what I have understood and now understand to be the correct rule and procedure.

PARKER and RODMAN, JJ., join in this dissenting opinion.