On their appeal to this Court, the plaintiffs contend that there is error in the judgment1 dismissing their action against the defendant, for that the facts alleged in the complaint are sufficient to constitute a cause of action under the provisions of C. S., 618. This contention cannot be sustained.
The facts alleged in the complaint in this action are substantially the same as the facts alleged in the cross complaint in the action instituted in the Superior Court of Mecklenburg County by “Janet Gaffney v. Lumbermen’s Mutual Casualty Company and others.” A judgment overruling the demurrer filed by the defendant herein to the cross complaint of the Lumbermen’s Mutual Casualty Company in that action was reversed by this Court. See Gaffney v. Casualty Company et al., 209 N. C., 515, 184 S. E., 46. In the opinion in that case by Schenck, J., it is said:
“The provisions of section • 618 of the Consolidated Statutes, all of which are designed to furnish relief or protection to two classes of persons and no others, namely, joint judgment debtors and joint tort-feasors, are as follows: (1) Those who are jointly liable as judgment debtors, either as joint obligors or as joint tort-feasors, may pay the judgment and have it transferred to a trustee for their benefit, and such transfer shall have the effect of preserving the lien of the judgment against the judgment debtor who does not pay his proportionate part thereof to the extent of his liability; (2) joint tort-feasors against whom judgment has been obtained may, in a subsequent action therefor, enforce contribution from all other joint tort-feasors who were not made parties to the action in which the judgment was taken; (3) joint tort-feasors who are made parties defendant, at any time before judgment is obtained, may, upon motion, have the other joint tort-feasors made parties defendant; (4) joint judgment debtors, who do not agree as to then-proportionate liability, by petition in the cause, in which it is alleged that any other joint judgment debtor is insolvent or a nonresident and cannot be forced under execution to contribute to the payment of the judgment, may have their proportionate liability ascertained by court and jury; and (5) joint judgment debtors who tender payment of judg*17ment and demand in writing transfer thereof to trustee for their benefit, and are refused such transfer by judgment creditors, may not hereafter have execution against him upon said judgments.
“The allegations of the cross actions of the defendant Lumbermen’s Mutual Casualty Company, and of the defendant C. M. Allred, fail to bring the defendant United States Fidelity and Guaranty Company within any of the foregoing provisions, since the guaranty company is, under said allegations, neither a joint tort-feasor nor a joint judgment debtor with the casualty company, or with Allred — nor with anyone else. There is no allegation that the guaranty company has committed any tort, or that any judgment has been taken against it. Such liability as the guaranty company has to any of the parties to this action, or to the former action, exists by virtue of its policy issued to Z. B. Phelps, and is purely contractual. A most liberal construction of the statute will not permit the writing into it of the liability of the insurance carrier of tort-feasors when only tort-feasors and judgment debtors are numbered therein.”
The decision of this Court in Gaffney v. Casualty Co., supra, is conclusive against the first contention of the plaintiffs.
The plaintiffs further contend that there is error in the judgment, for that the facts alleged in the complaint are sufficient to constitute a cause of action against the defendant for contribution on the equitable principle of subrogation, without .regard to the provisions of C. S., 618. This contention cannot be sustained.
There is no relationship between joint tort-feasors which entitles one joint tort-feasor to contribution from the other joint tort-feasor. Neither is liable as surety for the other. Each is liable for the damages caused by their joint and concurring negligence. But for the statute, neither is entitled to contribution from the other.
In the instant case the defendant is liable only under its contract. There is no provision in the contract which extends its liability to include the plaintiffs, or either of them. See Peeler v. Casualty Co., 197 N. C., 286, 148 S. E., 261.
There is no error in the judgment.
Affirmed.
Stacy, C. J., took no part in the consideration or decision of this case.