White v. Keller

86 S.E.2d 795 (1955)

242 N.C. 97

Mrs. Gertrude S. WHITE v. William B. KELLER and Harry Vander Linden.

No. 314.

Supreme Court of North Carolina.

April 13, 1955.

*796 Willis & Geitner, Hickory, for plaintiff appellee.

L. H. Wall and Claude F. Seila, Lenoir, for defendant appellant.

Townsend & Todd, Lenoir, for defendant appellee.

DEVIN, Justice.

By this appeal the defendant Keller seeks to review the ruling of the trial judge in denying his motion for judgment of nonsuit as to plaintiff White's action, and in setting aside the verdict as contrary to the weight of the evidence. As the verdict was set aside by the judge in the exercise of his discretionary power, his action may not be reviewed, in the absence of any suggestion of abuse of discretion. Anderson v. Holland, 209 N.C. 746, 184 S.E. 511; Hawley v. Powell, 222 N.C. 713, 24 S.E.2d 523; Poniros v. Nello L. Teer Co., 236 N.C. 145, 72 S.E.2d 9.

Nor will an appeal lie at this time from the ruling of the judge denying defendant's motion for judgment of nonsuit. Since there is neither verdict nor judgment, *797 there is no basis upon which his appeal on this ground can rest. As result of the action of Judge Rudisill, the case is still on the docket of Catawba Superior Court for trial on the issues raised by the pleadings as between White and Keller.

The defendant Keller also assigns as error the action of the trial judge in allowing defendant Vander Linden's motion for judgment of nonsuit as to Keller's cross complaint for contribution under the statute, G.S. § 1-240.

It seems the judge inadvertently nonsuited the plaintiff White as to Vander Linden, but the plaintiff has sought no recovery as to him. She offered neither allegation nor evidence tending to impose on him any liability for her injury. Pascal v. Burke Transit Co., 229 N.C. 435, 50 S.E.2d 534. But the judge entered judgment of nonsuit as to defendant Keller's cross complaint against Vander Linden for contribution. Whether this be regarded as a nonsuit, G.S. § 1-183, or more accurately a demurrer to the evidence, it was adjudged by the court, upon consideration of all the testimony adduced, that the evidence was insufficient to make out a case for contribution as joint tort-feasor as against Vander Linden, and he was accordingly dismissed from the case sine die.

It was said in Evans v. Johnson, 225 N.C. 238, 34 S.E.2d 73, 74:

"The right of a defendant sued in tort to bring into the action another joint tort-feasor and upon sufficient plea to maintain his cross-action against him for the purpose of determining his contingent liability for contribution is given by statute, G.S. § 1-240, and upheld by numerous decisions of this Court. Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335 [156 A.L.R. 922]; Godfrey v. Tidewater Power Co., 223 N.C. 647, 27 S.E.2d 736, 149 A.L.R. 1183. The purpose of the statute is to permit defendants in tort actions to litigate mutual contingent liabilities before they have accrued, Lackey v. Southern R. Co., 219 N.C. 195, 13 S.E.2d 234, so that all matters in controversy growing out of the same subject of action may be settled in one action, Freeman v. Thompson, 216 N.C. 484, 5 S.E.2d 434, though the plaintiff in the action may be thus delayed in securing his remedy. Montgomery v. Blades, 217 N.C. 654, 9 S.E.2d 397. Joint tort-feasors are those who act together in committing a wrong, or whose acts, if independent of each other, unite in causing a single injury. Bost v. Metcalfe, 219 N.C. 607, 14 S.E.2d 648. The right thus conferred by the statute is `rooted in and springs from the plaintiff's suit and projects itself beyond that suit.' Godfrey v. [Tidewater] Power Co., supra."

The question of the sufficiency of the cross complaint of a defendant to make out a case for contribution against an alleged joint tort-feasor was considered by this court on appeal from the ruling of the court below sustaining a demurrer in Hobbs v. Goodman, 240 N.C. 192, 81 S.E.2d 413, as was also done in Evans v. Johnson, supra. In Bass v. Ingold, 232 N.C. 295, 60 S.E.2d 114, the demurrer of the alleged joint tort-feasor was overruled by the trial court but sustained on appeal. In Read v. Young Roofing Co., 234 N.C. 273, 66 S.E.2d 821, the cross complaint of the original defendant against an alleged joint tort-feasor for contribution was challenged by demurrer, and on appeal the ruling of the trial court was affirmed. The sufficiency of the cross complaint for contribution among defendants in tort was also considered on appeal in Canestrino v. Powell, 231 N.C. 190, 56 S.E.2d 566. The sufficiency of the evidence offered in support of a cross action for contribution was considered on demurrer to the evidence in Pascal v. Burke Transit Co., supra. It was there held that the motion of the alleged joint tort-feasor for judgment as of nonsuit on the cross action was properly denied.

The cross action for contribution between defendants charged with tort, permitted by G.S. § 1-240, may not be used, however, to interject into the litigation another *798 action not germane to the plaintiff's action. Montgomery v. Blades, 217 N.C. 654, 9 S.E.2d 397. It was said in Hobbs v. Goodman, supra [240 N.C. 192, 81 S.E.2d 415]: "Defendants are not permitted to litigate in plaintiff's action differences which are not directly related thereto. * * * The purpose of the Act, G.S. § 1-240, is to permit a defendant who has been sued in tort to bring into the action, for the purpose of enforcing contribution, a joint tort-feasor whom the plaintiff could have joined as party defendant in the first instance. Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335, 156 A.L.R. 922."

However, upon consideration of the evidence offered in the case at bar as shown by the record, we reached the conclusion that the ruling of the trial judge in holding this evidence insufficient to make out a case for contribution by Vander Linden should be sustained.

It appears that defendant Vander Linden's automobile was parked diagonally near the highway, 24 feet south from the south abutment of the bridge, and that the rear of his automobile (left rear fender) extended out two feet into the paved road which was at that point 17 feet wide. It was midafternoon on a clear day. No other traffic was moving in the vicinity save the automobile of plaintiff some distance away moving south along the bridge. The hay baler attached to Keller's jeep was eight feet wide, considerably wider than the jeep. In passing the automobile Keller apparently miscalculated the distance or was oblivious of the extra width of the hay baler. In any event, the hay baler came in contact with the automobile and then struck the side of the bridge abutment. This caused the jeep to be deflected, or "jackknifed," in front of plaintiff's automobile.

So that whether the contact of the hay baler with the rear of the Vander Linden automobile should have been foreseen and avoided15 feet of the roadway was unobstructed or whether Keller, in meeting plaintiff's oncoming automobile, negligently drove the jeep so close to the abutment of the bridge that the hay baler was caused to strike it, resulting in the collision complained of, we think the evidence is insufficient to show that any negligence on Vander Linden's part proximately caused or contributed to plaintiff's injury.

We reach the conclusion that the rulings of the court below should be sustained.

Affirmed.

BARNHILL, C. J., took no part in the consideration or decision of this case.