Nationwide Mutual Insurance Company v. Bynum

148 S.E.2d 114 (1966)

267 N.C. 289

NATIONWIDE MUTUAL INSURANCE COMPANY v. John Robert BYNUM.

No. 533.

Supreme Court of North Carolina.

May 11, 1966.

*116 Dupree, Weaver, Horton, Cockman & Alvis, by F. T. Dupree, Jr., Jerry S. Alvis, Raleigh, for plaintiff appellant.

Teague, Johnson & Patterson, by Robert M. Clay, Raleigh, for defendant appellee.

HIGGINS, Justice.

The plaintiff-appellant in its brief correctly states the question of law involved in this appeal:

"Can an automobile insurer of one joint tort-feasor after discharging in full a judgment obtained by an injured party against its insured maintain in its own name an action for contribution under G.S. 1-240 against a second joint tort-feasor whose negligence proximately caused and contributed to the injury for which the judgment was obtained where the second tort-feasor was not made a party to the original suit?"

Under the rules of the common law the right of one joint tort-feasor to compel contribution from another did not exist. The common law rule in this State was changed by the enactment of Chapter 194, Public Laws, Session of 1919, and was further changed by Chapter 68, Public Laws of 1929. These enactments are now codified as G.S. § 1-240.

In substance the section provides that where two or more persons are liable for their joint tort and judgment has been rendered against some, but not all, those who pay may enforce contribution against the others who are jointly liable. "The right permitted to be enforced under this section is one of contribution and not one of subrogation." Potter v. Frosty Morn Meats, Inc., 242 N.C. 67, 86 S.E.2d 780; Squires v. Sorahan, 252 N.C. 589, 114 S.E.2d 277; Hayes v. City of Wilmington, 243 N.C. 525, 91 S.E.2d 673; Tarkington v. Rock Hill Printing & Finishing Co., 230 N.C. 354, 53 S.E.2d 269, 11 A.L.R.2d 221. Joint tort-feasors and joint judgment debtors are given the right to contribution. The plaintiff is neither.

The original action was brought by Mrs. Bynum against the plaintiff's insured. The present defendant, John Robert Bynum, was not a party to his wife's action. He was, of course, not adjudged a joint tort-feasor. No judgment whatever has been entered against him. In the two cases cited by the plaintiff in support of its position, Pittman v. Snedeker, 264 N.C. 55, 140 S.E.2d 740, and Safeco Ins. Co. of America v. Nationwide Mutual Insurance Co., 264 N.C. 749, 142 S.E.2d 694, the insureds were adjudged to be joint tort-feasors and judgments were rendered against them. Hence they are within the specific provisions of G.S. § 1-240. Nationwide was neither a judgment debtor nor a joint tort-feasor. The plaintiff's rights as insurer *117 arise by contract of subrogation under its policy and not as a result of its joint liability as a tort-feasor who has paid the judgment and is entitled to force contribution under G.S. § 1-240.

A rather impressive argument may be advanced in support of the proposition that the statute should be amended to include subrogation in the same category as contribution. Our decisions have been uniform in holding that subrogation is not included within the framework of G.S. § 1-240. If and when the lawmaking body wishes to amend the statute, a few words will suffice. This Court must forego the opportunity to amend here. The judgment sustaining the demurrer is

Affirmed.

MOORE, J., not sitting.