Sharon E. ANDERSON, by her Next Friend Emery Anderson
v.
Rawleigh W. ROBINSON, d/b/a Robinson Brothers Motor Company, and James A. Jenkins.
No. 110.
Supreme Court of North Carolina.
January 31, 1969.*504 Williams, Williams & Morris by James F. Blue, III, Asheville, for defendant Jenkins, appellant.
Van Winkle, Buck, Wall, Starnes, & Hyde by O. E. Starnes, Jr., and Scott N. Brown, Jr., Asheville, for defendant Robinson, appellee.
R. HUNT PARKER, Chief Justice.
Jenkins' goal, as alleged in his stricken "second further answer and defense and cross-action," is complete exoneration or indemnity, not contribution under G.S. § 1-240. He has alleged that the accident was caused solely and completely by the negligence of his co-defendant. As stated by Sharp, J., in Edwards v. Hamill, 262 N.C. 528, 531, 138 S.E.2d 151, 153: "Primary and secondary liability between defendants exists only when: (1) they are jointly and severally liable to the plaintiff [citations]; and (2) either (a) one has been passively negligent but is exposed to liability through the active negligence of the other or (b) one alone has done the act which produced the injury but the other is derivatively liable for the negligence of the former. [citations]."
Allegation by the plaintiff in her complaint that the defendants jointly and concurrently proximately caused her injuries is a conclusion of the pleader, and is not admitted by demurrer. Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761.
Before Jenkins can establish a right to indemnity from Robinson, he must allege and prove (1) that Robinson is liable to plaintiff, and (2) that Jenkins' liability to plaintiff is derivative, that is, based on the tortious conduct of Robinson, or that Jenkins is only passively negligent but is exposed to liability through the active negligence of Robinson. Hendricks v. Leslie Fay, Inc., 273 N.C. 59, 159 S.E.2d 362.
In his answer and cross-claim, Jenkins alleged that the sole cause of the accident was the negligence and breach of warranty by defendant Robinson. Jenkins is entitled to indemnification from Robinson only if he is held liable for an obligation for which Robinson is primarily liable. Plaintiff in her complaint alleged two distinct areas in which Jenkins was negligent: (1) In the actual driving of the automobile, *505 and (2) in failing to inspect the car before driving it on the highways.
If the jury should find Jenkins liable on the grounds that he was guilty of negligence in driving, that being the proximate cause of the accident, then clearly he would have no cause of action over against Robinson. If the jury should find that Jenkins was negligent in failing to test the brakes and determine that they were adequate before driving on the highways, and that by such testing and inspection he could have discovered the defect, then he would have no right to indemnity from Robinson. On the other hand, if the jury should find that Jenkins was not guilty of negligent driving, and that the condition of the brakes could not reasonably have been discovered by him, then the accident would in fact have been due to "sudden and unexpected brake failure," as alleged in his answer, and Jenkins would not be liable. Thus, if Jenkins is held answerable for the plaintiff's injuries under the facts as alleged it will be because of his own active negligence, and he will therefore not be entitled to indemnification from Robinson.
Any cross-action Jenkins has attempted to allege against Robinson for breach of warranty cannot be litigated in plaintiff's tort action, since it is not germane thereto. Steele v. Moore-Flesher Hauling Co., 260 N.C. 486, 133 S.E.2d 197; Greene v. Charlotte Chemical Laboratories, Inc., supra; McIntosh, N. C. Practice and Procedure, 2d ed., § 1244.5.
It should be noted that the new Rules of Civil Procedure, effective July 1, 1969, authorize a much wider range of cross-actions between co-parties than heretofore permissible. See Rule 13(g). Compare, e.g., Greene v. Charlotte Chemical Laboratories, Inc., supra.
The decision of the Court of Appeals is correct, but we think that it should have been based upon the precise point that we have based our decision on, instead of relying generally upon Greene v. Charlotte Chemical Laboratories, Inc., supra, where many different principles of law are discussed.
Affirmed.