Read v. Young Roofing Co.

Annotate this Case

66 S.E.2d 821 (1951)

234 N.C. 273


No. 163.

Supreme Court of North Carolina.

October 10, 1951.

*822 Perry & Kittrell, Henderson, for Young Roofing Co., Appellee.

Gholson & Gholson, Henderson, for Rosa Palmer, Appellant.

DEVIN, Chief Justice.

We think the portions of the pleading quoted above, considered in connection with other allegations of fact set out in defendant's answer and cross-action, are sufficient to state a cause of action for contribution against the appellant as joint tortfeasor, as permitted by the statute G.S. § 1-240, and that the demurrer was properly overruled.

The appellant's position is that in defendant's cross-action to which the demurrer was addressed it was alleged that Rosa Palmer's negligence was the sole proximate cause of the injury, and that she and plaintiff's intestate were joint adventurers, and therefore the plaintiff was barred by her negligence. But it will be noted that in the pleading challenged by the demurrer it was also alleged that if the facts so set up as a defense be found against the defendant, then the negligence of Rosa Palmer concurred with that of the defendant in causing the injury, and that she was liable to defendant for contribution as joint tort-feasor. Freeman v. Thompson, 216 N.C. 484, 5 S.E.2d 434.

The rule in this jurisdiction is that as against a demurrer a pleading will be liberally construed in favor of the pleader, and that if in any portion or to any extent the pleading presents facts sufficient to constitute a cause of action it will be upheld. Blackmore v. Winders, 144 N.C. 212, 56 S.E. 874; Wiscassett Mills Co. v. Shaw, Com'r, 233 N.C. 71, 62 S.E.2d 487; Bryant v. Little River Ice Co., 233 N.C. 266, 63 S.E.2d 547. And a demurrer requires search of the entire record. Harris v. Fairley, 232 N.C. 551, 61 S.E.2d 616.

The purpose of the statute permitting the joinder of a third party against whom the defendant seeks contribution as joint tort-feasor, G.S. § 1-240, was to enable litigants in tort actions to determine in one action all matters in controversy growing out of the same subject of action. Freeman v. Thompson, 216 N.C. 484, 5 S.E.2d 434; Evans v. Johnson, 225 N.C. 238, 34 S.E.2d 73.

In Evans v. Johnson, supra, the demurrer to defendant's cross-action for contribution was sustained, but the ruling there was predicated on allegations in a material respect differing from those in the case at bar. For the same reason demurrer was sustained in Walker v. Loyall, 210 N.C. 466, 187 S.E. 565, where the allegation was not one of joint tort-feasorship.

The judgment overruling the demurrer in this case is affirmed.

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