STANSEL
v.
McINTYRE et al.
No. 679.
Supreme Court of North Carolina.
January 30, 1953.*348 Smathers & Carpenter, Charlotte, McLean & Stacy, Lumberton, James W. Mason, Laurinburg, for defendant appellees.
McKinnon & McKinnon, Lumberton, for defendant appellants.
WINBORNE, Justice.
Appellants assign as error the rulings of the trial court (1) in denying their motion to strike, as irrelevant, immaterial and prejudicial, the "third further answer and defense" which by permission of court was filed by the original defendants, McIntyre and Adcock, as an amendment to their answer, and (2) in overruling their demurrer to the "third further answer and defense" of original defendants, for that the matters averred do not constitute an adjudication that the negligence of Mrs. *349 Austin was one of the proximate causes of the death of plaintiff's intestate, Mrs. Hargrove, and, hence, are not res judicata to that effect.
However, in the light of the provisions of the statute G.S. § 1-240, formerly C.S. § 618, as amended, and of pertinent decisions of this Court, error in these respects is not made to appear.
It is provided by this statute, G.S. § 1-240, that in an action arising out of a joint tort wherein judgment may be rendered against two or more persons or corporations, who are jointly and severally liable, and only one, or not all of the joint tortfeasors are made parties defendant, those tort-feasors made parties defendant may, at any time before judgment is obtained, upon motion, have the other such joint tort-feasors brought in and made parties defendant in order to determine and enforce contribution. Freeman v. Thompson, 216 N.C. 484, 5 S.E.2d 434; Godfrey v. Tidewater Power Co., 223 N.C. 647, 27 S.E.2d 736, 149 A.L.R. 1183; Wilson v. Massagee, 224 N.C. 705, 32 S.E.2d 335, 156 A.L.R. 922; Evans v. Johnson, 225 N.C. 238, 34 S.E.2d 73; Pascal v. Burke Transit Co., 229 N.C. 435, 50 S.E.2d 534; Tarkington v. Rock Hill Printing & Finishing Co., 230 N.C. 354, 53 S.E.2d 269, 11 A.L.R. 2d 221; Herring v. Queen City Coach Co., 234 N.C. 51, 65 S.E.2d 505.
In the Evans case, supra [225 N.C. 238, 34 S.E.2d 74], opinion by Devin, J., now Chief Justice, decisions of this Court in reference to provisions of G.S. § 1-240 are summarized in this manner: "The purpose of the statute is to permit defendants in tort actions to litigate mutual contingent liabilities before they have accrued * * so that all matters in controversy growing out of the same subject of action may be settled in one action * * * though the plaintiff in the action may be thus delayed in securing his remedy."
Moreover, this Court has held that where a plaintiff in a tort action does not demand any relief against an alleged joint tort-feasor brought into the action, on motion of the original defendant, pursuant to the provisions of G.S. § 1-240, the burden is upon the original defendant to prove his cross-action for contribution. Pascal v. Burke Transit Co., supra.
And in the case in hand, the original defendants, McIntyre and Adcock, having invoked the aid of this statute, G.S. § 1-240, for the purpose of determining and enforcing contribution, as between them and Mrs. Austin, have the burden of alleging and proving facts constituting her a joint tort-feasor with them in respect to the collision between the truck and trailer owned by defendant McIntyre and operated by defendant Adcock, and the automobile operated by Mrs. Austin in which it is alleged by plaintiff Mrs. Hargrove was then a passenger and sustained injuries resulting in death. Such controversy is between the original defendants, McIntyre and Adcock, on one hand, and Mrs. Austin on the other, authorized to be injected in the plaintiff's action, to the end that settlement of the whole controversy be had in a single action. Gaffney v. Lumberman's Mut. Casualty Co., 209 N.C. 515, 184 S.E. 46; Freeman v. Thompson, supra; Godfrey v. Tidewater Power Co., supra.
In the light of this statute, G.S. § 1-240, and these principles applied to the factual situation in hand, it would seem that the matters sought to be stricken are both material and relevant to the cross-action of the original defendants against Mrs. Austin.
Therefore, admitting the truth of the facts averred in the "third further answer and defense", pleaded by the original defendants, as is done when the sufficiency of a pleading to state a cause of action is challenged by demurrer, this question arises: Is the judgment in the Scotland County actions determinative of the question as to whether or not Mrs. Austin was a joint tort-feasor with McIntyre and Adcock in respect to the same collision there involved when it becomes the subject matter of another tort action instituted by a plaintiff who was not a party to the Scotland County case. Bearing in mind that the controversy here as to right to contribution, within the provisions of G.S. § 1-240, is one between McIntyre and Adcock, on one hand, and *350 Mrs. Austin on the other, who were the parties to the Scotland County cases, settled principles of law dictate an affirmative answer. See Armfield v. Moore, 44 N.C. 157; Crawford v. Crawford, 214 N.C. 614, 200 S.E. 421; Gibbs v. Higgins, 215 N.C. 201, 1 S.E.2d 554; Leary v. Virginia-Carolina Joint Stock Land Bank, 215 N. C. 501, 2 S.E.2d 570; Current v. Webb, 220 N.C. 425, 17 S.E.2d 614; Cannon v. Cannon, 223 N.C. 664, 28 S.E.2d 240; Craver v. Spaugh, 227 N.C. 129, 41 S.E.2d 82; Tarkington v. Rock Hill Printing & Finishing Co., supra; King v. Neese, 233 N.C. 132, 63 S.E.2d 123; Herring v. Queen City Coach Co., supra; Snyder v. Kenan Oil Co., 235 N. C. 119, 68 S.E.2d 805; Lumberton Coach Co. v. Stone, 235 N.C. 619, 70 S.E.2d 673.
Generally to constitute a judgment an estoppel there must be identity of parties, of subject matter, and of issues. And it is elementary that the estoppel of a judgment must be mutual, and "ordinarily, the rule is that only parties and privies are bound by a judgment" See Leary v. Virginia-Carolina Joint Stock Land Bank, supra [215 N.C. 501, 2 S.E.2d 573].
Moreover, in Current v. Webb, supra, the Court, quoting from 2 Freeman on Judgments, Sec. 670, states: "`There is no doubt that a final judgment or decree necessarily affirming the existence of any fact is conclusive upon the parties or their privies, whenever the existence of that fact is again in issue between them, not only when the subject matter is the same, but when the point comes incidentally in question in relation to a different matter, in the same or any other court.'" [220 N.C. 425, 17 S.E.2d 616.]
And, continuing in the Current case, "`It is not necessary that precisely the same parties were plaintiffs and defendants in the two suits; provided the same subject in controversy, between two or more of the parties, plaintiffs and defendants in the two suits respectively, has been in the former suit directly in issue, and decided.'" See other cases cited, including Leary v. Virginia-Carolina Joint Stock Land Bank, supra.
And in the Tarkington case, supra, Stacy, C. J., speaking in respect to a similar situation, stated the principle as follows [230 N.C. 354, 53 S.E.2d 271]: "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", citing Cannon v. Cannon, supra.
And in Herring v. Queen City Coach Co., supra [234 N.C. 51, 65 S.E.2d 507], another case similar to the one in hand, opinion by Devin, J., it is declared: "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", citing the Tarkington, Cannon and Current cases, supra.
Conversely, the rule applies to the factual situation instantly presented where in the previous suit it has been determined that the additional defendant had been contributorily negligent, the question may not again be raised in a controversy between the same parties.
Finally, while the "third further answer and defense" under consideration expressly relates to Mrs. James H. Austin, and not to James H. Austin, appellants in their brief call attention to the fact that McIntyre and Adcock in their joint answer aver that James H. Austin was the owner of the automobile and responsible under the family purpose doctrine. And it is asserted that "as a party to the matters in question for the first time he is clearly entitled to have a full trial of all matters alleged", and that "the allegations of the Scotland cases as to him are prejudicial to his defense of the case and are no bar to his right to plead such defenses as he has". As to this, it may be conceded that the question is not presented by this appeal, *351 but if it were presented, the position taken by appellants may not be conceded to be tenable. The family purpose doctrine with respect to automobiles obtains in North Carolina. See Ewing v. Thompson, 233 N. C. 564, 65 S.E.2d 17, and among other cases see Robertson v. Aldridge, 185 N.C. 292, 116 S.E. 742. Hence, if it be found that the automobile in question was owned and maintained by James H. Austin, and was being operated by Mrs. Austin, all within the family purpose doctrine, quaere, is he, James H. Austin, under the principle of respondeat superior, estopped by the judgment on the verdict in the Scotland County cases in respect to the issues on which original defendants now seek contribution from Mrs. Austin? Compare Leary v. Virginia-Carolina Joint Stock Land Bank, supra.
Affirmed.
PARKER, J., took no part in the consideration or decision of this case.