I.In General

Chapter Inapplicable in Contract Actions. —

By its terms, this Chapter applies only in tort actions, not contract actions. Duke Univ. v. St. Paul Mercury Ins. Co., 95 N.C. App. 663, 384 S.E.2d 36, 1989 N.C. App. LEXIS 867 (1989).

It is the intent of draftsmen of uniform acts that as much as possible they be given uniform interpretation among those states where they are in force. Battle v. Clanton, 27 N.C. App. 616, 220 S.E.2d 97, 1975 N.C. App. LEXIS 1925 (1975), cert. denied, 289 N.C. 613 , 223 S.E.2d 391, 1976 N.C. LEXIS 1338 (1976).

Article Applies Specifically to Liability for Injury or Wrongful Death. —

This Article specifically refers to liability for injury or wrongful death. Simmons v. Wilder, 6 N.C. App. 179, 169 S.E.2d 480, 1969 N.C. App. LEXIS 1160 (1969).

And Contemplates Encouragement of Settlements. —

This Article contemplates that settlements are to be encouraged. Wheeler v. Denton, 9 N.C. App. 167, 175 S.E.2d 769, 1970 N.C. App. LEXIS 1304 (1970).

This statute provides a new right of action wholly distinct from common-law right of indemnity. Ingram v. Smith, 16 N.C. App. 147, 191 S.E.2d 390, 1972 N.C. App. LEXIS 1658 , cert. denied, 282 N.C. 304 , 192 S.E.2d 195, 1972 N.C. LEXIS 939 (1972).

But it does not affect the common-law right of indemnity arising from primary-secondary liability. Ingram v. Smith, 16 N.C. App. 147, 191 S.E.2d 390, 1972 N.C. App. LEXIS 1658 , cert. denied, 282 N.C. 304 , 192 S.E.2d 195, 1972 N.C. LEXIS 939 (1972).

Irrespective of whether this Chapter codifies the right to indemnification as it does the right to contribution, there exists in North Carolina a common law right to indemnification of a passively negligent tort-feasor from an actively negligent tort-feasor. Teachy v. Coble Dairies, Inc., 306 N.C. 324 , 293 S.E.2d 182, 1982 N.C. LEXIS 1445 (1982).

The rights of contribution and indemnity are mutually inconsistent; the former assumes joint fault, the latter only derivative fault. Ingram v. Smith, 16 N.C. App. 147, 191 S.E.2d 390, 1972 N.C. App. LEXIS 1658 , cert. denied, 282 N.C. 304 , 192 S.E.2d 195, 1972 N.C. LEXIS 939 (1972).

Person who takes the position that he is free of negligence is not entitled to contribution. Nationwide Mut. Ins. Co. v. Weeks-Allen Motor Co., 18 N.C. App. 689, 198 S.E.2d 88, 1973 N.C. App. LEXIS 1985 (1973).

The right to contribution is statutory and is applicable only between joint tort-feasors. Roseboro Ford, Inc. v. Bass, 77 N.C. App. 363, 335 S.E.2d 214, 1985 N.C. App. LEXIS 4085 (1985).

No Right to Contribution from One Not a Joint Tort-Feasor. —

Where the party from whom contribution is sought is not a tort-feasor and not jointly liable, there is no right to contribution. Nationwide Mut. Ins. Co. v. Weeks-Allen Motor Co., 18 N.C. App. 689, 198 S.E.2d 88, 1973 N.C. App. LEXIS 1985 (1973).

There is no right to contribution from one who is not a joint tort-feasor. Holland v. Edgerton, 85 N.C. App. 567, 355 S.E.2d 514, 1987 N.C. App. LEXIS 2605 (1987).

The right to contribution does not exist unless two or more parties are joint tort-feasors. State Farm Mut. Auto. Ins. Co. v. Holland, 324 N.C. 466 , 380 S.E.2d 100, 1989 N.C. LEXIS 304 (1989).

Since plaintiff general contractor did not allege negligence claims against defendant subcontractors that were not otherwise covered by contractual obligations, there was no tort-feasor, and thus, no statutory right to contribution under G.S. 1B-1 ; the trial court properly dismissed the claims against the subcontractors under G.S. 1A-1 , Rule 12(b)(6). Kaleel Builders, Inc. v. Ashby, 161 N.C. App. 34, 587 S.E.2d 470, 2003 N.C. App. LEXIS 1993 (2003).

Nor for Claim on Contract. —

Under subsection (a) of this section, a defendant is entitled to contribution where he and one or more other persons are jointly or severally liable in tort. By the clear language of the statute, a defendant is not entitled to contribution for a claim against him in contract. Holland v. Edgerton, 85 N.C. App. 567, 355 S.E.2d 514, 1987 N.C. App. LEXIS 2605 (1987).

Claim for relief, based on a breach of implied warranty, gave rise to no right of contribution on the part of third party plaintiff, because it sounded in contract and not in tort. Holland v. Edgerton, 85 N.C. App. 567, 355 S.E.2d 514, 1987 N.C. App. LEXIS 2605 (1987).

Contribution Not Available for Intentional Infliction of Mental Distress. —

The language of subsection (c) of this section clearly excludes the possibility of contribution on any claim by plaintiffs for intentional infliction of mental distress. Holland v. Edgerton, 85 N.C. App. 567, 355 S.E.2d 514, 1987 N.C. App. LEXIS 2605 (1987).

No Right of Contribution for Gross Negligence. —

Contribution for gross negligence is not prohibited by G.S. 1B-1(c) because the statute prohibits contribution when the tortfeasor intended the injury, not the act. Total Petrochemicals & Ref. USA, Inc. v. RSI Leasing, Inc., 2020 U.S. Dist. LEXIS 217265 (W.D.N.C. Nov. 19, 2020).

Liability of State Restricted. —

Although under this Article, the State may be sued for contribution as a joint tort-feasor; the rules governing and limiting the liability of the State and its agencies as provided in the Tort Claims Act apply. Guthrie v. North Carolina State Ports Auth., 307 N.C. 522 , 299 S.E.2d 618, 1983 N.C. LEXIS 1109 (1983).

Effect of Release or Covenant Not to Sue under G.S. 1B-4 . —

The provisions of this section provide for contribution under certain circumstances, but G.S. 1B-4 takes away this right of contribution when the provisions thereof are complied with. Wheeler v. Denton, 9 N.C. App. 167, 175 S.E.2d 769, 1970 N.C. App. LEXIS 1304 (1970).

Releases and covenants not to sue are treated the same under the Uniform Contribution Among Tort-feasors Act, G.S. 1B-1 et seq., and absent other evidence, a release that releases all other persons or entities is valid; an all encompassing release signed by a pedestrian in exchange for a payment from a motorist’s insurance company barred the pedestrian’s later underinsured motorist claim against his employer’s insurer, and summary judgment in favor of the motorist and the insurer was affirmed. Van Keuren v. Little, 165 N.C. App. 244, 598 S.E.2d 168, 2004 N.C. App. LEXIS 1154 (2004).

The determination of whether a settlement was reached in good faith is within the discretion of the trial court, which will consider the “totality of the circumstances” and may, but is not obligated to, consider any number of factors, such as “a rough approximation of plaintiffs’ total recovery and the settlor’s proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, . . . a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial[,] . . . the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.” Brooks v. Wal-Mart Stores, Inc., 139 N.C. App. 637, 535 S.E.2d 55, 2000 N.C. App. LEXIS 1038 (2000).

Primary and secondary liability between defendants exists only when: (1) They are jointly and severally liable to the plaintiff; 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. Ingram v. Smith, 16 N.C. App. 147, 191 S.E.2d 390, 1972 N.C. App. LEXIS 1658 , cert. denied, 282 N.C. 304 , 192 S.E.2d 195, 1972 N.C. LEXIS 939 (1972).

The doctrine of primary-secondary liability is based upon a contract implied in law. Ingram v. Smith, 16 N.C. App. 147, 191 S.E.2d 390, 1972 N.C. App. LEXIS 1658 , cert. denied, 282 N.C. 304 , 192 S.E.2d 195, 1972 N.C. LEXIS 939 (1972).

And is therefore subject to the three-year statute of limitations under G.S. 1-52(1) . Ingram v. Smith, 16 N.C. App. 147, 191 S.E.2d 390, 1972 N.C. App. LEXIS 1658 , cert. denied, 282 N.C. 304 , 192 S.E.2d 195, 1972 N.C. LEXIS 939 (1972).

Who Are Joint Tort-Feasors. —

Two or more parties are joint tort-feasors when their negligent or wrongful acts are united in time or circumstance such that the two acts constitute one transaction or when two separate acts concur in point of time and place to cause a single injury. State Farm Mut. Auto. Ins. Co. v. Holland, 324 N.C. 466 , 380 S.E.2d 100, 1989 N.C. LEXIS 304 (1989).

If independent wrongful acts of two or more persons unite in producing a single indivisible injury, the parties are joint tort-feasors within the meaning of the law. Cox v. Robert C. Rhein Interest, Inc., 100 N.C. App. 584, 397 S.E.2d 358, 1990 N.C. App. LEXIS 1079 (1990).

In a bankruptcy case, there were no facts pled and no cause of action that would have established joint liability as joint tortfeasors to pay any sort of indemnity contractual remedy; even if contribution might have been equitable, equity was not enough without an underlying joint and several liability. There was no joint liability on a note, only one party had obligor liability, and other parties were liable on a conditional guaranty, which condition had not alleged been met. Flanders/Precisionaire Corp. v. Bank of N.Y. Mellon Trust Co., N.A., 2014 Bankr. LEXIS 2211 (Bankr. E.D.N.C. May 16, 2014), dismissed in part, 2015 NCBC 33, 2015 NCBC LEXIS 36 (N.C. Super. Ct. Apr. 7, 2015).

Suit Against One or More Joint Tort-Feasors by Personal Representative. —

The personal representative of a person killed by the negligence of two joint tort-feasors may, at his election, sue one or both of the tort-feasors. If he sues both and the jury finds them to be joint tort-feasors, the resulting judgment is joint and several and the party paying more than his pro rata share of the judgment is entitled to contribution from the other. State Farm Mut. Auto. Ins. Co. v. Holland, 324 N.C. 466 , 380 S.E.2d 100, 1989 N.C. LEXIS 304 (1989).

Joinder of Other Tort-Feasors by Defendant. —

Where plaintiff elects to sue only one of several joint tort-feasors, the original defendant may have others joined as additional or third party defendants. State Farm Mut. Auto. Ins. Co. v. Holland, 324 N.C. 466 , 380 S.E.2d 100, 1989 N.C. LEXIS 304 (1989).

Separate Action by Defendant Against Other Tort-Feasor. —

Where one of two joint tort-feasors is not made a party to the original action, either by the plaintiff or the original defendant, the original defendant may nevertheless, by separate action, seek contribution from the other tort-feasor. In such a case he must establish, not only that a judgment has been entered against him, but that the other party is in fact a joint tort-feasor, that is, that the other party is liable jointly with the original defendant to the plaintiff for damages. State Farm Mut. Auto. Ins. Co. v. Holland, 324 N.C. 466 , 380 S.E.2d 100, 1989 N.C. LEXIS 304 (1989).

The burden is on the tort-feasor seeking contribution to show that the right exists, and to allege facts which show liability to the injured party as well as a right to contribution. State Farm Mut. Auto. Ins. Co. v. Holland, 324 N.C. 466 , 380 S.E.2d 100, 1989 N.C. LEXIS 304 (1989).

Collateral Estoppel Not Available to Show Joint and Several Liability of One Not Made Defendant in Action. —

Where, after wrongful death action in which mother was neither named as a defendant nor named as a third party defendant, and in which insured was found to have caused the death of child in a car accident, insurer sought contribution from mother for half of the money paid to the child’s estate, the doctrine of collateral estoppel was not available to the insurer to show mother’s joint and several liability to the estate of the child; since mother was not a party to the wrongful death claim and was not made a third party defendant for the purpose of contribution, neither her liability to the estate of child nor her liability to insurer as a joint tort-feasor was established by the judgment in the original action. State Farm Mut. Auto. Ins. Co. v. Holland, 324 N.C. 466 , 380 S.E.2d 100, 1989 N.C. LEXIS 304 (1989).

To permit an original defendant against whom a judgment is entered in a claim for the wrongful death of a child to collect one-half of the judgment from the parent, based solely on determination of parent’s negligence for the purpose of assessing damages against defendant, would effectively remove any need to make the parent a third party defendant. The practical effect of such a holding would be to prevent the parent’s insurer from having an opportunity to defend a claim against the parent. State Farm Mut. Auto. Ins. Co. v. Holland, 324 N.C. 466 , 380 S.E.2d 100, 1989 N.C. LEXIS 304 (1989).

Plaintiff’s suit for contribution from a joint tortfeasors was not precluded by res judicata or collateral estoppel where an earlier settlement case between the defendants/tortfeasors and decedent’s estate dealt only with issues of (1) good faith and (2) best interests of the estate and where the issue of the effect of the order approving the settlement on the respective rights of the joint tortfeasors to contribution was not ripe for determination until the plaintiff, as insurer for one of the joint tortfeasors, paid more than its share of the judgment. Medical Mut. Ins. Co. v. Mauldin, 137 N.C. App. 690, 529 S.E.2d 697, 2000 N.C. App. LEXIS 532 (2000), cert. denied, 352 N.C. 590 , 544 S.E.2d 568, 2000 N.C. LEXIS 600 (2000), aff'd, 353 N.C. 352 , 543 S.E.2d 478, 2001 N.C. LEXIS 264 (2001).

Third-party plaintiff had an affirmative burden to show that he met the requirements of subsection (d) of this section, and he failed to meet this burden where he did not introduce evidence of a release that he claimed he obtained from the injured party, nor show that third-party defendant’s liability to the injured party had been extinguished. King v. Humphrey, 88 N.C. App. 143, 362 S.E.2d 614, 1987 N.C. App. LEXIS 3439 (1987).

Trial court erred in not applying G.S. 1B-4 where, in their complaint, plaintiffs treated defendants as joint tort-feasors and sought relief from flood damage caused by mud and silt runoff from all defendants’ properties, and evidence at trial revealed only a single indivisible injury, the flooding of plaintiffs’ property, and until appeal plaintiffs did not attempt to allocate their injury among defendants. Cox v. Robert C. Rhein Interest, Inc., 100 N.C. App. 584, 397 S.E.2d 358, 1990 N.C. App. LEXIS 1079 (1990).

For defendant to be entitled to verdict reduction in the amount of a pretrial settlement between plaintiffs and two other defendants, it must not only appear that the three defendants are tort-feasors, but also that the negligence of all three defendants caused an indivisible injury. Cox v. Robert C. Rhein Interest, Inc., 100 N.C. App. 584, 397 S.E.2d 358, 1990 N.C. App. LEXIS 1079 (1990).

Church was not entitled to contribution from the YMCA where the church paid nothing of its own in settlement; therefore, it did not pay more than its pro rata share and was not entitled to contribution. Jones v. Shoji, 336 N.C. 581 , 444 S.E.2d 203, 1994 N.C. LEXIS 298 (1994).

Although it appears that the legislature intended the phrase in subsection (f) of this section to mean “where one tort-feasor is entitled to indemnity from another tort-feasor,” the language of the statute is simply “where one tort-feasor is entitled to indemnity from another.” Since the term “another” as used in the statute is ambiguous, by applying principles of statutory construction to ascertain the legislative will, and the title of the Act makes clear that the statute applies to “tort-feasors”; the context of the legislation indicates that it is concerned only with the apportionment of loss as between tort-feasors, and the Act should not be read to speak to apportionment of loss by contract between a tort-feasor and a third party. Yates v. New S. Pizza, Ltd., 102 N.C. App. 66, 401 S.E.2d 380, 1991 N.C. App. LEXIS 199 (1991), rev'd, 330 N.C. 790 , 412 S.E.2d 666, 1992 N.C. LEXIS 64 (1992).

Underinsured insurance carrier cannot assert a claim of contribution because the carrier is not a tortfeasor; however, the carrier can bring a direct action against one of the defendants even though that defendant executed a release in favor of the other defendants. Johnson v. Hudson, 122 N.C. App. 188, 468 S.E.2d 64, 1996 N.C. App. LEXIS 212 (1996).

If a negligent insurance broker was found to be an insurer’s agent, the insurer could be liable for the broker’s negligence, under the Uniform Contribution Among Tort-feasors Act, even though the broker settled with the insured who sued the insurer and the broker, G.S. 1B-1(a) , the insurer was liable to the negligent broker for contribution to the amount for which the broker settled, because the broker’s settlement with and release by the insured did not release the insurer, and the insurer’s lack of direct negligence was immaterial. Jefferson Pilot Fin. Ins. Co. v. Marsh USA, Inc., 159 N.C. App. 43, 582 S.E.2d 701, 2003 N.C. App. LEXIS 1436 (2003).

A Negligent Insurance Broker, Who Was an Agent of Insurer, Was Not Prohibited From Pursuing Contribution Against Insurer. —

Under the Uniform Contribution Among Tort-feasors Act, G.S. 1B-1(d) , a negligent insurance broker, who was an agent of an insurer, was not prohibited from pursuing contribution against the insurer because the agent extinguished its tort cross-claims against the insurer. Jefferson Pilot Fin. Ins. Co. v. Marsh USA, Inc., 159 N.C. App. 43, 582 S.E.2d 701, 2003 N.C. App. LEXIS 1436 (2003).

Pre-Judgment Interest. —

Although an underlying wrongful death judgment awarded compensatory damages, apportionment of that judgment did not; therefore, prejudgment interest under G.S. 24-5(b) was properly denied since the contribution action under this article was derivative and based upon the codification of equitable principles. Medical Mut. Ins. Co. v. Mauldin, 157 N.C. App. 136, 577 S.E.2d 680, 2003 N.C. App. LEXIS 376 (2003).

Claim Sufficient to Survive Summary Judgment. —

City’s claim for contribution under the North Carolina Uniform Contribution Among Tortfeasors Act would survive summary judgment where facts could lead a rational jury to conclude that the driver was negligent in leaving her car with the keys inside, and that her negligence proximately caused plaintiff to be injured when her car was struck by driver’s vehicle, being driven by another and being pursued by law enforcement officers. D'Alessandro v. Westall, 972 F. Supp. 965, 1997 U.S. Dist. LEXIS 6210 (W.D.N.C. 1997).

No Standing To Recover Contribution. —

Trial court did not err in finding that plaintiffs did not have standing to recover contribution from defendants for the amounts plaintiffs paid to patients pursuant to a settlement agreement because plaintiffs were judicially estopped from asserting that the corporate veil had to be pierced between defendants; in the patients’ underlying medical negligence case, plaintiffs denied allegations that one of them owned, operated, managed, and controlled the other as a wholly owned subsidiary that it operated as a mere instrumentality, but in their complaint against defendants, plaintiffs alleged that one of them owned, operated, managed, and controlled the other. Health Mgmt. Assocs. v. Yerby, 215 N.C. App. 124, 715 S.E.2d 513, 2011 N.C. App. LEXIS 1747 (2011).

Trial court did not err in finding that plaintiff did not have standing to recover contribution from defendants for the amounts plaintiff paid to patients pursuant to a settlement agreement because plaintiff failed to show that it paid its pro rata share of the settlement payment to the patients. Health Mgmt. Assocs. v. Yerby, 215 N.C. App. 124, 715 S.E.2d 513, 2011 N.C. App. LEXIS 1747 (2011).

Trial court did not err in finding that plaintiff did not have standing to recover contribution from defendants for the amounts plaintiff paid to patients pursuant to a settlement agreement because plaintiff was operating an insurance program in North Carolina without a license pursuant to G.S. 58-28-15 . Health Mgmt. Assocs. v. Yerby, 215 N.C. App. 124, 715 S.E.2d 513, 2011 N.C. App. LEXIS 1747 (2011).

Insurer’s contribution claim against providers for allegedly serving alcohol to a driver and allowing the driver to drive and injure the insurer’s insureds was properly dismissed because (1) the insurer had no right to assert such a claim, under G.S. 1B-1(b) , which governed over the more general G.S. 20-279.21 , and only allowed joint tort-feasors to assert the claim, and (2) neither the insurer nor the insurer’s insureds were joint tort-feasors. Nationwide Prop. & Cas. Ins. Co. v. Smith, 256 N.C. App. 492, 808 S.E.2d 172, 2017 N.C. App. LEXIS 966 (2017).

No Right of Contribution for Willful Conduct, Which Requires Intentional Act. —

In his order awarding attorney fees on the misappropriation of trade secrets claim, the district court judge concluded that the claimant’s conduct was willful and malicious based on the jury instructions and the jury’s subsequent award of punitive damages. Given that willful conduct requires an intentional act, at the least, the claimant had no right of contribution for his purported overpayment per North Carolina law; on this basis alone, his request for an allowed claim in this bankruptcy should be denied. In re Red F Mktg., LLC, 547 B.R. 168, 2016 Bankr. LEXIS 657 (Bankr. W.D.N.C. 2016).

II.Decisions under Prior Law

Editor’s Note. —

The cases cited below were decided under former G.S. 1-240 .

Common Law. —

At common law there was no right of contribution as between joint tort-feasors. Shaw v. Baxley, 270 N.C. 740 , 155 S.E.2d 256, 1967 N.C. LEXIS 1416 (1967).

Under the rules of the common law the right of one joint tort-feasor to compel contribution from another did not exist. Nationwide Mut. Ins. Co. v. Bynum, 267 N.C. 289 , 148 S.E.2d 114, 1966 N.C. LEXIS 1028 (1966).

Prior to enactment of former G.S. 1-240 one tort-feasor was, as a rule, not entitled to contribution from another. Pearsall v. Duke Power Co., 258 N.C. 639 , 129 S.E.2d 217, 1963 N.C. LEXIS 448 (1963).

Legislative Intent. —

It is safe to assume that the General Assembly was moved to enact former G.S. 1-240 by the reason underlying the entire law of contribution, namely, that where one person has been compelled to pay money which others were equally bound to pay, each of the latter in good conscience should contribute the proportion which he ought to pay of the amount expended to discharge the common burden or obligation. Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559 , 75 S.E.2d 768, 1953 N.C. LEXIS 703 (1953).

Right to Contribution Among Joint Tort-Feasors Is Statutory. —

At common law no right of action for contribution existed between or among joint tort-feasors who were in pari delicto; thus such right is statutory, and its use necessarily depends upon the terms of the statute. Godfrey v. Tidewater Power Co., 223 N.C. 647 , 27 S.E.2d 736, 1943 N.C. LEXIS 341 (1943); Hayes v. City of Wilmington, 239 N.C. 238 , 79 S.E.2d 792, 1954 N.C. LEXIS 369 (1954); Bell v. Lacey, 248 N.C. 703 , 104 S.E.2d 833, 1958 N.C. LEXIS 546 (1958); Greene v. Charlotte Chem. Labs., Inc., 254 N.C. 680 , 120 S.E.2d 82, 1961 N.C. LEXIS 541 (1961).

The enactment of former G.S. 1-240 created as to parties jointly and severally liable a new right and ready means for the enforcement of that right. Norris v. Johnson, 246 N.C. 179 , 97 S.E.2d 773, 1957 N.C. LEXIS 385 (1957).

Common-law rule that there is no right of contribution between joint tort-feasors has been modified in this State so as to provide for enforcement of contribution as between joint tort-feasors in the manner and to the extent provided by statute. Herring v. Jackson, 255 N.C. 537 , 122 S.E.2d 366, 1961 N.C. LEXIS 645 (1961).

In this jurisdiction, the common-law rule has been modified by statute so as to provide for enforcement of contribution as between joint tort-feasors in accordance with its provisions. Shaw v. Baxley, 270 N.C. 740 , 155 S.E.2d 256, 1967 N.C. LEXIS 1416 (1967).

Former G.S. 1-240 seemed to abrogate the well-settled rule, that, subject to some exceptions (see Gregg v. City of Wilmington, 155 N.C. 18 , 70 S.E. 1070 (1911), there can be no contribution between joint tort-feasors. Raulf v. Elizabeth City Light Power Co., 176 N.C. 691 , 97 S.E. 236, 1918 N.C. LEXIS 330 (1918); Lineberger v. Gastonia, 196 N.C. 445 , 146 S.E. 79, 1929 N.C. LEXIS 8 (1929); Hayes v. City of Wilmington, 239 N.C. 238 , 79 S.E.2d 792, 1954 N.C. LEXIS 369 (1954).

And Must Be Enforced According to Statute. —

The right to contribution comes from the statute, and it is to be enforced according to the form of the statute. Tarkington v. Rock Hill Printing & Finishing Co., 230 N.C. 354 , 53 S.E.2d 269, 1949 N.C. LEXIS 639 (1949); Potter v. Frosty Morn Meats, Inc., 242 N.C. 67 , 86 S.E.2d 780, 1955 N.C. LEXIS 461 (1955).

Former G.S. 1-240 created a new right and provided an exclusive remedy, and substantial compliance with its terms was necessary to make it available. Hoft v. Mohn, 215 N.C. 397 , 2 S.E.2d 23, 1939 N.C. LEXIS 272 (1939); Potter v. Frosty Morn Meats, Inc., 242 N.C. 67 , 86 S.E.2d 780, 1955 N.C. LEXIS 461 (1955).

Contribution is made the rule and not the exception by statute. Pearsall v. Duke Power Co., 258 N.C. 639 , 129 S.E.2d 217, 1963 N.C. LEXIS 448 (1963).

Enforcement of Contribution Authorized. —

In substance former G.S. 1-240 provided that where two or more persons were liable for their joint tort and judgment had been rendered against some, but not all, those who had paid could enforce contribution against the others who were jointly liable. Nationwide Mut. Ins. Co. v. Bynum, 267 N.C. 289 , 148 S.E.2d 114, 1966 N.C. LEXIS 1028 (1966).

Joint tort-feasors and joint judgment debtors are given the right to contribution. Nationwide Mut. Ins. Co. v. Bynum, 267 N.C. 289 , 148 S.E.2d 114, 1966 N.C. LEXIS 1028 (1966).

And there can be no contribution unless the parties are joint tort-feasors. Pearsall v. Duke Power Co., 258 N.C. 639 , 129 S.E.2d 217, 1963 N.C. LEXIS 448 (1963).

Liability for contribution under the statute cannot be invoked except among joint tort-feasors. Lovette v. Lloyd, 236 N.C. 663 , 73 S.E.2d 886, 1953 N.C. LEXIS 546 (1953); Wise v. Vincent, 265 N.C. 647 , 144 S.E.2d 877, 1965 N.C. LEXIS 1071 (1965).

An original defendant may not invoke the statutory right of contribution against another party in a tort action unless both parties are liable as joint tort-feasors to the plaintiff in the action. Clemmons v. King, 265 N.C. 199 , 143 S.E.2d 83, 1965 N.C. LEXIS 957 (1965).

A defendant who has been sued for tort may bring into the action for the purpose of enforcing contribution only a joint tort-feasor whom plaintiff could have sued originally in the same action. Petrea v. Ryder Tank Lines, 264 N.C. 230 , 141 S.E.2d 278, 1965 N.C. LEXIS 1158 (1965).

Where insureds are adjudged to be joint tort-feasors and judgments are rendered against them, they are within the specific provisions of the statute. Nationwide Mut. Ins. Co. v. Bynum, 267 N.C. 289 , 148 S.E.2d 114, 1966 N.C. LEXIS 1028 (1966).

The right of contribution is a personal right. Pittman v. Snedeker, 264 N.C. 55 , 140 S.E.2d 740, 1965 N.C. LEXIS 1109 (1965).

And Cannot Be Assigned or Transferred. —

The right of contribution is not one that can be assigned or transferred by operation of law under the doctrine of subrogation. Pittman v. Snedeker, 264 N.C. 55 , 140 S.E.2d 740, 1965 N.C. LEXIS 1109 (1965).

Right to Contribution Is Not Dependent on Plaintiff ’s Continued Right to Sue. —

The right of one joint tort-feasor to enforce contribution against another is said to spring from the plaintiff ’s suit. This right of contribution, however, projects itself beyond the plaintiff ’s suit, and is not dependent upon the plaintiff ’s continued right to sue both or all the joint tort-feasors. Godfrey v. Tidewater Power Co., 223 N.C. 647 , 27 S.E.2d 736, 1943 N.C. LEXIS 341 (1943).

As it is the joint tort and common liability to suit which gives rise to the right to enforce contribution. Tarkington v. Rock Hill Printing & Finishing Co., 230 N.C. 354 , 53 S.E.2d 269, 1949 N.C. LEXIS 639 (1949); White v. Keller, 242 N.C. 97 , 86 S.E.2d 795, 1955 N.C. LEXIS 466 (1955).

And Permission of Original Plaintiff Is Not Required. —

When one joint tort-feasor is sued alone, he may join other joint tort-feasors for contribution without permission from the original plaintiff. Norris v. Johnson, 246 N.C. 179 , 97 S.E.2d 773, 1957 N.C. LEXIS 385 (1957); McBryde v. Coggins-McIntosh Lumber Co., 246 N.C. 415 , 98 S.E.2d 663, 1957 N.C. LEXIS 465 (1957).

How Right of Contribution May Be Enforced. —

The right of the party sued to have contribution from all responsible for the damage may be enforced in either of two ways. The party sued may wait until a judgment has been obtained against him, whereupon he may maintain an action against the other tort-feasors; or he may, in the action against him, have the other tort-feasors made parties. In either event the party called on to compensate the injured party is a plaintiff in the action against his alleged joint tort-feasors. Pearsall v. Duke Power Co., 258 N.C. 639 , 129 S.E.2d 217, 1963 N.C. LEXIS 448 (1963).

Only Pro Rata Share Required of Additional Defendants. —

The statute does not contemplate that one brought in as an additional defendant shall pay more than a pro rata part of any verdict rendered against the original defendants. Jordan v. Blackwelder, 250 N.C. 189 , 108 S.E.2d 429, 1959 N.C. LEXIS 630 (1959).

Plaintiff himself may sue any one or all of the tort-feasors. Clemmons v. King, 265 N.C. 199 , 143 S.E.2d 83, 1965 N.C. LEXIS 957 (1965).

Plaintiff Cannot Be Compelled to Sue Joint Tort-Feasors. —

Insofar as plaintiff is concerned, when he has elected to sue only one of several joint tort-feasors, the others are not necessary parties and plaintiff cannot be compelled to pursue them; nor can the original defendant compel plaintiff to join issue with a defendant he has elected not to sue. Moreover, the original defendant cannot rely on the liability to the original plaintiff of the party brought in, but must recover, if at all, upon the liability of such party to him. Charnock v. Taylor, 223 N.C. 360 , 26 S.E.2d 911, 1943 N.C. LEXIS 271 (1943); Hayes v. City of Wilmington, 239 N.C. 238 , 79 S.E.2d 792, 1954 N.C. LEXIS 369 (1954); Bell v. Lacey, 248 N.C. 703 , 104 S.E.2d 833, 1958 N.C. LEXIS 546 (1958); Greene v. Charlotte Chem. Labs., Inc., 254 N.C. 680 , 120 S.E.2d 82, 1961 N.C. LEXIS 541 (1961).

A defendant sued in tort cannot compel plaintiff to sue all those responsible for the damage, but may have contribution from all responsible for the damage. Pearsall v. Duke Power Co., 258 N.C. 639 , 129 S.E.2d 217, 1963 N.C. LEXIS 448 (1963).

But Defendant May Bring Them In. —

When the aggrieved party elects to sue less than all the tort-feasors, the original defendant or defendants may have the others made additional defendants for the purpose of enforcing contribution in the event the plaintiff recovers. Phillips v. Hassett Mining Co., 244 N.C. 17 , 92 S.E.2d 429, 1956 N.C. LEXIS 644 (1956).

When a person has been injured through the concurring negligence of two or more persons, he may sue one or all of the joint tort-feasors, at his option. Insofar as he is concerned, the others are not necessary parties and he may not be compelled to bring them in. They may, however, be brought in by the original defendant on a cross complaint in which he alleges joint tort-feasorship and his right to contribution in the event plaintiff recovers judgment against him. Hayes v. City of Wilmington, 239 N.C. 238 , 79 S.E.2d 792, 1954 N.C. LEXIS 369 (1954).

When a defendant in a negligent injury action files answer denying negligence but alleging that if it were negligent a third party was also guilty of negligence which concurred in causing the injury in suit, and demands affirmative relief against such third person, he is entitled to have such third person joined as a codefendant. Freeman v. Thompson, 216 N.C. 484 , 5 S.E.2d 434, 1939 N.C. LEXIS 20 (1939); Lackey v. Southern Ry., 219 N.C. 195 , 13 S.E.2d 234, 1941 N.C. LEXIS 284 (1941). See also, Bost v. Metcalfe, 219 N.C. 607 , 14 S.E.2d 648, 1941 N.C. LEXIS 110 (1941); Hayes v. City of Wilmington, 243 N.C. 525 , 91 S.E.2d 673, 1956 N.C. LEXIS 591 (1956); Denny v. Coleman, 245 N.C. 90 , 95 S.E.2d 352, 1956 N.C. LEXIS 540 (1956); Wise v. Vincent, 265 N.C. 647 , 144 S.E.2d 877, 1965 N.C. LEXIS 1071 (1965).

A party is given the right to bring in joint obligors for contribution. Overton v. Tarkington, 249 N.C. 340 , 106 S.E.2d 717, 1959 N.C. LEXIS 372 (1959).

Applicability of G.S. 1-166 to Cross Action Against Unknown Joint Tort-Feasor. —

The obvious purpose of G.S. 1-166 is to provide plaintiff a means to toll the statute of limitations when he does not yet know the proper designation of the defendant. No comparable necessity exists when a defendant desires to pursue a cross action for contribution against an unknown joint tort-feasor, since the statute does not begin to run on the claim for contribution until judgment has been recovered against the first tort-feasor. Wall Funeral Home v. Stafford, 3 N.C. App. 578, 165 S.E.2d 532, 1969 N.C. App. LEXIS 1625 (1969).

Judicial Admission of Negligence Need Not Be Made in Order to Interplead Third Party. —

To interplead a third party for contribution the law does not require a defendant in a personal injury suit to make a judicial admission that his negligence was one of the proximate causes of the injury for which plaintiff sues. He may deny negligence and allege, conditionally or alternatively, that if he was negligent, the third party’s negligence concurred with his as a proximate cause of plaintiff ’s injuries. Clemmons v. King, 265 N.C. 199 , 143 S.E.2d 83, 1965 N.C. LEXIS 957 (1965).

The party brought in may assert any defense appropriate to the cause of action asserted against him. He may plead estoppel by settlement or a judgment binding the parties. Norris v. Johnson, 246 N.C. 179 , 97 S.E.2d 773, 1957 N.C. LEXIS 385 (1957).

Additional Party Under No Obligation to Answer Allegations in Original Complaint. —

An additional party defendant has no cause of action stated against him except that asserted in the cross action and set out in the cross complaint. Hence, the additional party defendant is under no obligation to answer any allegations in the original complaint, but only those alleged against him in the cross complaint. Greene v. Charlotte Chem. Labs., Inc., 254 N.C. 680 , 120 S.E.2d 82, 1961 N.C. LEXIS 541 (1961).

Too Late to Bring in Other Joint Tort-Feasors After Entry of Default Judgment. —

When joint tort-feasors who have been sued in an action fail to file an answer to a complaint that states a good cause of action, and plaintiffs obtain a judgment by default and inquiry, which is regular in all respects, a motion, lodged thereafter, to bring in other joint tort-feasors so as to determine liability for contribution as between themselves comes too late. Denny v. Coleman, 245 N.C. 90 , 95 S.E.2d 352, 1956 N.C. LEXIS 540 (1956).

Allegations in Cross Action for Contribution. —

In order to maintain a cross action against another for contribution, the original defendant must allege facts sufficient to show that both of them are liable to the plaintiff as joint tort-feasors. Potter v. Frosty Morn Meats, Inc., 242 N.C. 67 , 86 S.E.2d 780, 1955 N.C. LEXIS 461 (1955).

In order for one defendant to join another as a third-party defendant for the purpose of contribution, he must allege facts sufficient to show joint tort-feasorship and his right to contribution in the event plaintiff recovers against him. Clemmons v. King, 265 N.C. 199 , 143 S.E.2d 83, 1965 N.C. LEXIS 957 (1965); Wise v. Vincent, 265 N.C. 647 , 144 S.E.2d 877, 1965 N.C. LEXIS 1071 (1965).

In order for one defendant to join another as an additional defendant for the purpose of contribution, he must show by his allegations facts sufficient to make them both liable to plaintiff as joint tort-feasors, and allegations showing only a cause of action which would entitle the plaintiff to recover of such additional party are not sufficient. Hayes v. City of Wilmington, 239 N.C. 238 , 79 S.E.2d 792, 1954 N.C. LEXIS 369 (1954); Hayes v. City of Wilmington, 243 N.C. 525 , 91 S.E.2d 673, 1956 N.C. LEXIS 591 (1956).

In order to show joint tort-feasorship, it is necessary that the facts alleged in the cross complaint are sufficient to make the third party liable to the plaintiff along with the cross-complaining defendant in the event of a recovery by the plaintiff against him. Clemmons v. King, 265 N.C. 199 , 143 S.E.2d 83, 1965 N.C. LEXIS 957 (1965); Wise v. Vincent, 265 N.C. 647 , 144 S.E.2d 877, 1965 N.C. LEXIS 1071 (1965).

The allegations of the cross complaint must be so related to the subject matter declared on in the plaintiff ’s complaint as to disclose that the plaintiff, had he desired to do so, could have joined the third party as a defendant in the action. Wise v. Vincent, 265 N.C. 647 , 144 S.E.2d 877, 1965 N.C. LEXIS 1071 (1965).

To entitle the original defendant in a tort action to have some third party made an additional party defendant to enforce contribution, it must be made to appear from the facts alleged in the cross action that the defendant and such third person are tort-feasors in respect to the subject of controversy, jointly liable to the plaintiff for the particular wrong alleged in the complaint. The facts must be such that the plaintiff, had he desired so to do, could have joined such third party as defendant in the action. Hobbs v. Goodman, 240 N.C. 192 , 81 S.E.2d 413, 1954 N.C. LEXIS 675 (1954). See also, Hobbs v. Goodman, 241 N.C. 297 , 84 S.E.2d 904, 1954 N.C. LEXIS 584 (1954); Hayes v. City of Wilmington, 243 N.C. 525 , 91 S.E.2d 673, 1956 N.C. LEXIS 591 (1956); Johnson v. Catlett, 246 N.C. 341 , 98 S.E.2d 458, 1957 N.C. LEXIS 440 (1957); Jones v. Douglas Aircraft Co., 253 N.C. 482 , 117 S.E.2d 496, 1960 N.C. LEXIS 697 (1960).

The pleading filed by the original defendant must state facts which are sufficient to show that the original defendant is entitled to contribution from the additional defendant. If the facts alleged do not suffice to establish a right to contribution, the party or parties brought in as additional defendants are unnecessary parties and may on motion have the allegations stricken and the action dismissed as to them. Etheridge v. Carolina Power & Light Co., 249 N.C. 367 , 106 S.E.2d 560, 1959 N.C. LEXIS 356 (1959).

When an alleged joint tort-feasor was brought into a case as an additional party defendant, and it turned out that no cause of action was stated against him, either in the main action or in a cross action pleaded by another defendant, he was an unnecessary party to the action and, on motion, could have his name stricken from the record as mere surplusage. Hayes v. City of Wilmington, 243 N.C. 525 , 91 S.E.2d 673, 1956 N.C. LEXIS 591 (1956).

For allegations sufficient to state a cause of action against joint tort-feasor for contribution, see Read v. Young Roofing Co., 234 N.C. 273 , 66 S.E.2d 821, 1951 N.C. LEXIS 436 (1951).

Original Defendant Becomes a Plaintiff as to Additional Defendant. —

Where plaintiff does not bring his action against all joint tort-feasors, and an original defendant sets up a cross action against a third party and has him brought in as an additional party defendant for contribution, such original defendant makes himself a plaintiff as to the additional party defendant. Bell v. Lacey, 248 N.C. 703 , 104 S.E.2d 833, 1958 N.C. LEXIS 546 (1958); Greene v. Charlotte Chem. Labs., Inc., 254 N.C. 680 , 120 S.E.2d 82, 1961 N.C. LEXIS 541 (1961).

When an injured party elects to sue some but not all of the tort-feasors responsible for his injuries, those sued have a right to bring the other wrongdoers in for contribution. The original defendant then becomes a plaintiff as to the tort-feasors not originally sued. Etheridge v. Carolina Power & Light Co., 249 N.C. 367 , 106 S.E.2d 560, 1959 N.C. LEXIS 356 (1959).

Additional Defendant May File Counterclaim Against Original Defendant. —

Where the original defendant has another joined as additional defendant for contribution on the ground of their concurring negligence in producing plaintiff ’s injury, the additional defendant may file a counterclaim against the original defendant for damages to the additional defendant’s property allegedly resulting from the negligence of the original defendant, and such counterclaim is improperly stricken upon motion of the original defendant. Norris v. Johnson, 246 N.C. 179 , 97 S.E.2d 773, 1957 N.C. LEXIS 385 (1957).

Interjection of Action Which Is Not Germane Not Contemplated. —

The cross action for contribution between defendants charged with tort may not be used to interject into the litigation another action not germane to the plaintiff ’s action. White v. Keller, 242 N.C. 97 , 86 S.E.2d 795, 1955 N.C. LEXIS 466 (1955).

Burden Is on Original Defendant to Prove Cross Action. —

Where plaintiff does not demand any relief against a codefendant joined by the original defendant as a joint tort-feasor, the burden is on the original defendant to prove his cross action for contribution, and upon motion of the codefendant for nonsuit on the cross action the evidence must be considered in the light most favorable to the original defendant upon that cause. Pascal v. Burke Transit Co., 229 N.C. 435 , 50 S.E.2d 534, 1948 N.C. LEXIS 363 (1948); Stansel v. McIntyre, 237 N.C. 148 , 74 S.E.2d 345, 1953 N.C. LEXIS 489 (1953).

Where one joint tort-feasor has others joined for contribution, he is, as to the new defendants, a plaintiff and must establish his right of action, and such additional defendants may assert any appropriate defense to the cross action without regard to relevancy to the claim of plaintiff. Norris v. Johnson, 246 N.C. 179 , 97 S.E.2d 773, 1957 N.C. LEXIS 385 (1957).

As to procedure for contribution between defendants, see Whiteman v. Seashore Transp. Co., 231 N.C. 701 , 58 S.E.2d 752, 1950 N.C. LEXIS 387 (1950); Byerly v. Shell, 312 F.2d 141, 1962 U.S. App. LEXIS 3692 (4th Cir. 1962).

Original Defendant’s Right to Contribution Not Affected by Payment of Judgment by Insurer. —

Where insurer of original defendant pays plaintiff ’s judgment against its insured and plaintiff ’s judgment is marked paid and satisfied, the original defendant’s right to contribution from another defendant is not affected and the insurer is entitled to enforce his claim. Pittman v. Snedeker, 264 N.C. 55 , 140 S.E.2d 740, 1965 N.C. LEXIS 1109 (1965).

Assertion of Right Against Another Tort-Feasor Not Barred by Failure to Perfect Appeal. —

Where plaintiff has established one tort-feasor’s duty to compensate her, that tort-feasor, by its failure to perfect its appeal from the adjudication of its liability to plaintiff and the discharge thereof, is not thereby barred from asserting its right against another tort-feasor. Pearsall v. Duke Power Co., 258 N.C. 639 , 129 S.E.2d 217, 1963 N.C. LEXIS 448 (1963).

Dismissal of Codefendants. —

Where plaintiff elected to sue both joint tort-feasors and alleged active negligence on the part of both which concurred in producing the injury, each was entitled to contribution from the other if there was a judgment of joint and several liability against them, but during the course of the trial each was a defendant as to the plaintiff only, and neither could preclude dismissal of the action against the other if plaintiff failed to make out a prima facie case against the other; moreover, allegations and prayer for contribution contained in the answer of one were properly stricken on motion. Greene v. Charlotte Chem. Labs., Inc., 254 N.C. 680 , 120 S.E.2d 82, 1961 N.C. LEXIS 541 (1961).

Where the plaintiff made out a prima facie case against both defendants, dismissal of other defendants was improper, since this prevented codefendants from pressing their claim for contribution. Byerly v. Shell, 312 F.2d 141, 1962 U.S. App. LEXIS 3692 (4th Cir. 1962).

Additional Defendant Held Entitled to Motion for Nonsuit. —

For the failure of original defendant to allege and offer any evidence tending to show that joint and concurring negligence on the part of herself and additional defendant proximately caused injury to plaintiff, additional defendant’s motion for judgment of nonsuit should have been sustained. Clemmons v. King, 265 N.C. 199 , 143 S.E.2d 83, 1965 N.C. LEXIS 957 (1965).

Effect of Settlement with Regard to Injured Party Not Involved Therein. —

While passengers, by making settlement with one joint tort-feasor, waived any right they might have possessed to seek compensation from the other, the tort-feasor making settlement with them waived no right it possessed to assert its claim to contribution against the other alleged joint tort-feasor in an action by a passenger with whom no settlement has been made. Snyder v. Kenan Oil Co., 235 N.C. 119 , 68 S.E.2d 805, 1952 N.C. LEXIS 330 (1952).

Res Judicata in Subsequent Action Between Joint Tort-Feasors. —

Where initial action is instituted by the passenger in one vehicle against the driver of the other vehicle, and 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. 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, that 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. Hill v. Edwards, 255 N.C. 615 , 122 S.E.2d 383, 1961 N.C. LEXIS 648 (1961); Sisk v. Perkins, 264 N.C. 43 , 140 S.E.2d 753, 1965 N.C. LEXIS 1106 (1965).

Defendant may not exculpate himself from liability for his negligence by showing that codefendant was also negligent. Byerly v. Shell, 312 F.2d 141, 1962 U.S. App. LEXIS 3692 (4th Cir. 1962).

Allegation by plaintiff that defendants jointly and concurrently proximately caused injuries is a conclusion of the pleader and is not admitted by demurrer. Anderson v. Robinson, 275 N.C. 132 , 165 S.E.2d 502, 1969 N.C. LEXIS 356 (1969).

Joint and Several Judgments in Favor of Plaintiff Held Error. —

Where plaintiffs sought no affirmative relief against a codefendant joined by the original defendant for the purpose of enforcing contribution against it as a joint tort-feasor, it was error for the court to enter joint and several judgments in favor of plaintiffs against both defendants upon the jury’s finding that both were guilty of actionable negligence, since the liability of the codefendant was solely to the original defendant on its claim for contribution. Pascal v. Burke Transit Co., 229 N.C. 435 , 50 S.E.2d 534, 1948 N.C. LEXIS 363 (1948); Shaw v. Eaves, 262 N.C. 656 , 138 S.E.2d 520, 1964 N.C. LEXIS 734 (1964).

As to the binding effect of a consent judgment in a foreign action, see Carolina Coach Co. v. Cox, 337 F.2d 101, 1964 U.S. App. LEXIS 4296 (4th Cir. 1964).

In an action against a third party tort-feasor by an employee subject to the Worker’s Compensation Act, the defendant was not entitled to join the employer or the insurance carrier for contribution or to set up the defense that its liability was secondary and that of the employer was primary. Lovette v. Lloyd, 236 N.C. 663 , 73 S.E.2d 886, 1953 N.C. LEXIS 546 (1953); Johnson v. Catlett, 246 N.C. 341 , 98 S.E.2d 458, 1957 N.C. LEXIS 440 (1957).

Where a third party tort-feasor is sued for the wrongful death of an employee, he is not entitled to have the employer joined as a joint tort-feasor nor as a necessary party to the determination of the action when the original defendant does not rely upon the doctrine of primary and secondary liability. Clark v. Pilot Freight Carriers, 247 N.C. 705 , 102 S.E.2d 252, 1958 N.C. LEXIS 317 (1958); Jones v. Douglas Aircraft Co., 253 N.C. 482 , 117 S.E.2d 496, 1960 N.C. LEXIS 697 (1960).

Where the personal representative of a deceased employee sued a third party tort-feasor in an action instituted in this State, and defendant had the employer and a fellow employee of the deceased employee joined for contribution, motions of the additional defendants to strike the cross action were properly allowed where it appeared that the deceased was employed in another state, that the injury came within the purview of the compensation act of such state, and that an award had been entered therein adjudicating the liabilities of the additional defendants for the death. Johnson v. Catlett, 246 N.C. 341 , 98 S.E.2d 458, 1957 N.C. LEXIS 440 (1957).

In an action by property owner to recover damages from mining company due to dumping of silt in river in its mining operations, defendant company could file a cross complaint for contribution against two other mining companies committing the same injurious acts in their operations. Phillips v. Hassett Mining Co., 244 N.C. 17 , 92 S.E.2d 429, 1956 N.C. LEXIS 644 (1956).

Where plaintiff sued a newspaper for alleged libel, the newspaper, upon allegations that an individual composed the libelous matter and had it published as a paid advertisement, was entitled to have such individual joined as a joint tort-feasor for the purpose of contribution, and such individual’s demurrer to the cross action of the newspaper against him was properly overruled. Taylor v. Kinston Free Press Co., 237 N.C. 551 , 75 S.E.2d 528, 1953 N.C. LEXIS 681 (1953).

Joinder of Injured or Deceased Child’s Parents Held Improper. —

In an action for wrongful death instituted by the administrator of a deceased unemancipated child against the driver of the car inflicting the fatal injury, defendant was not entitled to have the child’s mother joined as a party defendant for the purpose of contribution or indemnity upon allegations that the child’s mother was negligent in permitting the child to enter upon the highway unattended, since the mother could not be liable to the plaintiff as a joint tort-feasor, and the statutory right of contribution and the right to indemnity on the ground of primary and secondary liability are both based upon the liability of a joint tort-feasor. Lewis v. Farm Bureau Mut. Auto. Ins. Co., 243 N.C. 55 , 89 S.E.2d 788, 1955 N.C. LEXIS 712 (1955).

In an action on behalf of an unemancipated child to recover for negligent injury, the defendants could not file a cross action against the plaintiff ’s parents for contribution, because such cross action would indirectly hold the unemancipated minor’s parents liable to him for the injury. Watson v. Nichols, 270 N.C. 733 , 155 S.E.2d 154, 1967 N.C. LEXIS 1414 (1967).

Subrogation was not included within the framework of former G.S. 1-240 . Nationwide Mut. Ins. Co. v. Bynum, 267 N.C. 289 , 148 S.E.2d 114, 1966 N.C. LEXIS 1028 (1966).

The right permitted to be enforced under former G.S. 1-240 was one of contribution and not one of subrogation. Nationwide Mut. Ins. Co. v. Bynum, 267 N.C. 289 , 148 S.E.2d 114, 1966 N.C. LEXIS 1028 (1966).

And Therefore Former G.S. 1-240 Was Inapplicable to Subrogation by Insurers. —

Since the liability of insurance carriers of tort-feasors is contractual and not founded on tort, where no judgment was recovered against such a carrier by any of the parties to an action, former G.S. 1-240 was inapplicable, as by its express terms it applied only to joint tort-feasors and to joint judgment debtors. Gaffney v. Lumbermen's Mut. Cas. Co., 209 N.C. 515 , 184 S.E. 46, 1936 N.C. LEXIS 279 (1936); Lumbermen's Mut. Cas. Co. v. United States Fid. & Guar. Co., 211 N.C. 13 , 188 S.E. 634, 1936 N.C. LEXIS 390 (1936); Squires v. Sorahan, 252 N.C. 589 , 114 S.E.2d 277, 1960 N.C. LEXIS 619 (1960).

Under former G.S. 1-240 , the insurance carrier who paid a joint tort-feasor’s obligations to the injured party could not force contribution from other tort-feasors, as the statute could not be stretched to include subrogation, which arises by reason of contract, into contribution, which arises by reason of participation in the tort. Squires v. Sorahan, 252 N.C. 589 , 114 S.E.2d 277, 1960 N.C. LEXIS 619 (1960).

Under former G.S. 1-240 , an insurer paying the judgment obtained by the injured party against one tort-feasor had no right of action to enforce contribution against the other tort-feasor, and could not acquire such right of action by the device of a “loan” to the injured party payable only in the event and to the extent of any recovery which the injured party might obtain against the other tort-feasor; and in an action for contribution in the name of the injured party, maintained solely in the interest of the insurer, the injured party was not a real party in interest. Herring v. Jackson, 255 N.C. 537 , 122 S.E.2d 366, 1961 N.C. LEXIS 645 (1961).

An automobile insurer of one joint tort-feasor, after discharging in full a judgment obtained by an injured party against its insured, could not maintain in its own name an action for contribution under former G.S. 1-240 against a second joint tort-feasor whose negligence proximately caused and contributed to the injury for which the judgment was obtained, where the second tort-feasor was not made a party to the original suit, as the plaintiff ’s rights as insurer arose by contract of subrogation under its policy and not as a result of its joint liability as a tort-feasor who had paid the judgment and was entitled to force contribution. Nationwide Mut. Ins. Co. v. Bynum, 267 N.C. 289 , 148 S.E.2d 114, 1966 N.C. LEXIS 1028 (1966).

Primary and secondary liability between defendants exists only when: (1) They are jointly and severally liable to the plaintiff; 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. Anderson v. Robinson, 275 N.C. 132 , 165 S.E.2d 502, 1969 N.C. LEXIS 356 (1969).

In order for one defendant to establish a right to indemnity from a second defendant, he must allege and prove (1) That the second defendant is liable to plaintiff, and (2) That the first defendant’s liability to plaintiff is derivative, that is, based on tortious conduct of the second defendant, or that the first defendant is only passively negligent but is exposed to liability through the active negligence of the second defendant. Anderson v. Robinson, 275 N.C. 132 , 165 S.E.2d 502, 1969 N.C. LEXIS 356 (1969).

Tort-feasor whose liability is secondary, upon payment by him of the injured party’s recovery, is entitled to indemnity against the primary wrongdoer. Ingram v. Nationwide Mut. Ins. Co., 258 N.C. 632 , 129 S.E.2d 222, 1963 N.C. LEXIS 449 (1963).

Where two persons are jointly liable in respect to a tort, one being liable because he is the actual wrongdoer, and the other by reason of constructive or technical fault imposed by law, the latter, if blameless as between himself and his co-tort-feasor, ordinarily will be allowed to recover full indemnity over against the actual wrongdoer. Hendricks v. Leslie Fay, Inc., 273 N.C. 59 , 159 S.E.2d 362, 1968 N.C. LEXIS 557 (1968).

Where liability has been imposed on the master because of the negligence of his servant, and the master did not participate in the wrong and incurs liability solely under the doctrine of respondeat superior, the master, having discharged the liability, may recover full indemnity from the servant. Hendricks v. Leslie Fay, Inc., 273 N.C. 59 , 159 S.E.2d 362, 1968 N.C. LEXIS 557 (1968).

A defendant secondarily liable, when sued alone, may have the person primarily liable brought in to respond to the original defendant’s cross action. Hendricks v. Leslie Fay, Inc., 273 N.C. 59 , 159 S.E.2d 362, 1968 N.C. LEXIS 557 (1968).

The law permits an adjudication in one action of primary and secondary liability between joint tort-feasors who are not in pari delicto. A defendant secondarily liable, when sued alone, may have the tort-feasor primarily liable brought into the action by alleging a cross action for indemnification against him. Edwards v. Hamill, 262 N.C. 528 , 138 S.E.2d 151, 1964 N.C. LEXIS 686 (1964).

Where two alleged tort-feasors are sued by the injured party, one may set up a cross action against the other for indemnity, under the doctrine of primary-secondary liability, and have the matter adjudicated in that action. Steele v. Moore-Flesher Hauling Co., 260 N.C. 486 , 133 S.E.2d 197, 1963 N.C. LEXIS 764 (1963); Hendricks v. Leslie Fay, Inc., 273 N.C. 59 , 159 S.E.2d 362, 1968 N.C. LEXIS 557 (1968).

Lessees Held Not Entitled to Join Lessor on Principle of Primary and Secondary Liability. —

Where plaintiff sued to recover for injuries sustained when a sign erected by lessees over a sidewalk fell and struck her, lessees were not entitled to join the lessor as a party defendant on the principle of primary and secondary liability, since upon the cause as set out in the complaint, lessees’ active negligence created the situation which caused the injury, and therefore lessees were primarily liable. Hobbs v. Goodman, 240 N.C. 192 , 81 S.E.2d 413, 1954 N.C. LEXIS 675 (1954).