Herring v. Queen City Coach Co.

65 S.E.2d 505 (1951)

234 N.C. 51

HERRING v. QUEEN CITY COACH CO. et al.

No. 747.

Supreme Court of North Carolina.

June 7, 1951.

*506 Fuller, Reade, Umstead & Fuller and A. H. Graham, Jr., all of Durham, for defendant Mrs. Mabel Spivey, Administratrix, appellee.

R. M. Gantt, Durham, for defendant Queen City Coach Co., appellant.

DEVIN, Justice.

The question presented by the appeal is the propriety of the ruling below denying the motion of the defendant Coach Company to strike from the answer of the additional defendant Mabel Spivey the allegations which refer to a previous judgment rendered in her favor as administratrix of Paul Spivey and against defendant Coach Company for damages for the wrongful death of Paul Spivey as result of the collision between his automobile and defendant's bus. This judgment is pleaded now as res judicata and determinative of the question of the negligence of Paul Spivey in causing the collision, for the reason that the question of his contributory negligence having been an issue in that suit and by the judgment decided adversely to the defendant, could not again be set up in a cross-action for contribution between the same parties.

*507 The rule seems to have been established that when in a cross-action by the defendant against an additional defendant for contribution as joint tort-feasor, it appears that in a previous action between them it had been determined that the additional defendant had not been contributorily negligent, the question could not again be raised in a suit between the same parties. Tarkington v. Rock Hill Printing & Finishing Co., 230 N.C. 354, 53 S.E.2d 269, 11 A.L.R.2d 221; Cannon v. Cannon, 223 N.C. 664, 28 S.E.2d 240; Current v. Webb, 220 N.C. 425, 17 S.E.2d 614; 2 Freeman on Judgments, sec. 670. In the opinion in the Tarkington case, where the facts were similar, Chief Justice Stacy stated the applicable rule as follows: "The prior suit as between the then parties litigant determined the question whether the driver of the automobile was contributorily negligent or a joint tort-feasor with the owner and driver of the truck in bringing about the collision. Hence, as between the parties there litigant, this matter would seem to be res judicata." [230 N.C. 354, 53 S.E.2d 271.]

The defendant Coach Company, however, contends the rule stated in Tarkington v. Rock Hill Printing and Finishing Company, supra, was predicated on a finding by the jury on issue submitted that the driver of the automobile was not guilty of contributory negligence, and this rule should not be applied when the judgment was by consent. True, the judgment set up here was a consent judgment, but it does appear that in the former suit this defendant pleaded as an affirmative defense the contributory negligence of Paul Spivey, and the judgment adjudged that plaintiff recover of the defendant the sum of $4000 in the suit for the wrongful death of Paul Spivey. There were no reservations in the judgment, and, nothing else appearing, this judgment constitutes a final determination of the issues raised by the pleadings. Jenkins v. Jenkins, 225 N.C. 681, 684, 36 S.E.2d 233; Jefferson v. Southern Land Sales Corp., 220 N.C. 76, 16 S.E.2d 462; Stancil v. Wilder, 222 N.C. 706, 24 S.E.2d 527. A judgment for the plaintiff under these circumstances without qualification or reservation would necessarily dispose adversely of an affirmative defense pleaded in bar by the defendant. 31 A.J. 107.

The general rule is stated in an elaborate note in 2 A.L.R.2d 511, as follows: "As a general proposition, it is well settled that a valid judgment or decree entered by agreement or consent operates as res judicata, to the same extent as a judgment or decree rendered after answer and contest, and is binding and conclusive upon the parties, and those in privity with them." It was said in Law v. Cleveland, 213 N.C. 289, 195 S.E. 809, 812, "It is well settled that a consent judgment is just as valid and binding as a judgment rendered after the trial of a cause." Simmons v. McCullin, 163 N.C. 409, 79 S.E. 625; LaLonde v. Hubbard, 202 N.C. 771, 164 S.E. 359; Gibson v. Gordon, 213 N.C. 666, 197 S.E. 135.

This rule, however, would not apply here to the consent judgments entered in the suits against the defendant by Mabel Spivey individually, or as next friend of Linda Darnell Spivey, as it does not appear that they were parties to the suit by the personal representative of Paul Spivey, or that his contributory negligence was at issue in those suits; nor is contribution now sought from them as joint tort-feasors. Those suits do not seem to have any proper relation to the present action.

The court properly declined to allow the motion of defendant Coach Company to strike the first paragraph of the further answer and defense of Mabel Spivey, Administratrix, but the judgment should be modified to sustain this defendant's motion to strike paragraph 2 thereof and exhibits B and C which were made parts of this paragraph.

As thus modified the judgment is affirmed.