Walker v. Loyall, 210 N.C. 466 (1936)

Sept. 23, 1936 · Supreme Court of North Carolina

210 N.C. 466

MORGAN V. WALKER, Administrator, v. G. R. LOYALL et al.

(Filed 23 September, 1936.)

Torts B a — Held: Neither complaint nor answer alleged cause against pax’ty joined as codeiendant on motion ot original defendant.

Defendant had another party joined as eodefendant, and filed answer denying negligence on his part and alleging that the negligence of his codefendant was the sole proximate cause of the injury in suit, but demanding no relief against his eodefendant. Held: The demurrer of the party joined should have been sustained on authority of Bargeon v. Transportation Co., 196 N. O., 776, neither the complaint nor the answer of the original defendant alleging any cause of action against him, and G. S., 61S, permitting contribution among 'joint tort-feasors, being inapplicable since the answer of the original defendant alleges sole liability on the part of his codefendant and not joint tort-feasorship.

Appeal by defendant administrator from Grady, J., at February Term, 1936, of Pasquotank.

Civil action to recover damages for alleged wrongful death.

Tbe original summons was not served on tbe receivers of tbe Norfolk Southern Eailroad; whereupon tbe defendant administrator, upon motion, procured an order making tbe receivers parties, and summons was duly issued and served. Tbe administrator filed answer denying liability and alleging that plaintiff’s intestate’s death was caused by tbe sole negligence of tbe receivers. No relief, however, is asked against tbe receivers by tbe defendant administrator.

Tbe receivers demurred to tbe complaint and to tbe answer of tbe defendant administrator upon tbe ground that neither pleading states facts sufficient to constitute a cause of action against them. Demurrer sustained, from which ruling tbe defendant administrator alone appeals.

No counsel appearing for plaintiff.

John H. Hall for defendant, administrator, appellant.

Thompson & Wilson for defendants, receivers, appellees.

Stacy, C. J.

The judgment of the Superior Court must be affirmed on authority of Bargeon v. Transportation Co., 196 N. C., 776, 147 S. E., 299, which is controlling upon the facts presently appearing of record. The two cases are not distinguishable by reason of the amendment to C. S., 618, enacted 27 February, 1929, permitting contribution between joint tort-feasors, because the allegation of the defendant administrator is one of sole liability on the part of the receivers, if any liability at all, and not one of joint tort-feasorship. Ballinger v. Thomas, 195 N. C., 517, 142 S. E., 761.

Nothing can be added to what was said in the Bargeon case, supra, where the late Justice Brogden, with his usual clarity and conciseness, covers the whole matter. The decision is directly in point and is decisive of the present appeal.

Affirmed.