J. Curron HILL
v.
Johnny Avery EDWARDS, Willard Hardison and R. H. Bouligny, Inc.
No. 310.
Supreme Court of North Carolina.
November 8, 1961.*384 Jones, Reed & Griffin, Kinston, for plaintiff appellant.
Whitaker & Jeffress, Kinston, for defendant appellee Edwards.
*385 DENNY, Justice.
This appeal presents for determination whether or not the court below committed error in its ruling to the effect that the judgment in the case of Carter v. Edwards constitutes an estoppel and bar to the plaintiff's right to maintain this action against Johnny Avery Edwards.
"(W)here the initial action is instituted by the passenger in one vehicle against the driver of the other vehicle, in which the passenger's driver is joined for contribution, adjudication that the passenger's driver was not guilty of negligence constituting a proximate cause of the accident, is res judicata in a subsequent action between the drivers." Strong's North Carolina Index, Volume III, Judgments, Section 29, page 45, citing Jenkins v. Fowler, 247 N.C. III, 100 S.E.2d 234.
It is equally true in such a factual situation, where the plaintiff recovers judgment against the original defendant, and the jury finds the additional defendant guilty of negligence and that such negligence concurred in jointly and proximately causing plaintiff's injuries and gives the original defendant a verdict for contribution pursuant to the provisions of G.S. § 1-240, such judgment is res judicata in a subsequent action between such drivers, based on the same facts litigated in the cross action in the former trial.
The plaintiff is relying on Gunter v. Winders, 253 N.C. 782, 117 S.E.2d 787, for reversal of the judgment below. The Gunter case is not controlling on the facts in this case. The decision there was based on the fact that the pleadings did not allege joint and concurrent negligence on the part of the co-defendants in the prior action. Moreover, a judgment against two or more defendants in a tort action should not be held conclusive inter se unless their rights and liabilities were put in issue by their pleadings.
In the Gunter case the plaintiff and the defendants were all original defendants in the prior action. Therefore, they were not adversaries and could not settle their differences inter se. Bell v. Lacey, 248 N.C. 703, 104 S.E.2d 833.
The ruling of the court below will be upheld on authority of Jenkins v. Fowler, supra; Stansel v. McIntyre, 237 N.C. 148, 74 S.E.2d 345; Snyder v. Kenan Oil Co., 235 N.C. 119, 68 S.E.2d 805; Tarkington v. Rock Hill Printing Co., 230 N.C. 354, 53 S.E.2d 269, 11 A.L.R. 2d 221, and similar cases.
The judgment of the court below is
Affirmed.