Taylor v. J. A. Jones Construction Co.

BeogdeN, J.

The defendant, Jones Construction Company, in apt time tendered the following issue: “Was the negligence of the defendant, J. W. Markham, primary, and that of J. A. Jones Construction Company, secondary?”

The trial judge refused to submit this issue, and such refusal constitutes the main exception in the case. The question of law presented, therefore, is when does the principle of primary and secondary liability] apply in actions for personal injury?

The general rule is that there can be no indemnity or contribution between joint tort-feasors.

It is also familiar learning that there are certain well recognized exceptions to the general rule, and that in proper cases indemnity or contribution is allowed, but such recoveries rest solely and entirely upon established principles of equity. The question involved has been considered by this Court in the following cases:

Dillon v. Raleigh, 124 N. C., 187 ;

Gregg v. Wilmington, 155 N. C., 18 ;

Commissioners v. Indemnity Co., 155 N. C., 219 ;

Sircey v. Rees' Sons, 155 N. C., 296 ;

Doles v. R. R., 160 N. C., 322 ;

Ridge v. High Point, 176 N. C., 421 ;

Bowman v. Greensboro, 190 N. C., 611 . Tbe leading authorities in other jurisdictions are assembled in the cases of Horrabin v. City of Des Moines, 199 N. W., 988 ; and Griffiths & Son v. National Fireproofing Co., 141 N. E., 739 . Both cases are reported with extensive annotations in 38 A. L. R., 554 et seq.

The principles of law applicable to the question are well established, but the main difficulty consists in applying the principles to a given state of facts. The authorities referred to, however, disclose certain tests whereby the application of the principle may be determined. Thus in Horrabin v. Des Moines, the Court said: “One of the tests in determining whether there may be contribution or indemnity in favor of one joint wrongdoer against another is whether the former knew, or must be presumed to have known, that the act for which be has been held liable was wrongful.” Again in Griffiths & Son v. National Fireproofing Co., supra, the Illinois Court stated the principle thus: “Where one of them *33 is only passively negligent, but is exposed to liability through, the positive acts and actual negligence of the other, the parties are not in equal fault as to each other, though both are equally liable to the injured person.” ". . . -The further general principle is announced, however, in many cases, that where one does the act which produces the injury, and the other does not join in the act, but is thereby exposed to liability and suffers damage, the latter may recover against the principal delinquent, and the law will inquire into the real delinquency, and place the ultimate liability upon him whose fault was the primary cause of the injury.”

The same tests announced in other jurisdictions have been recognized and applied in this State. For instance, in Doles v. R. R., 160 N. C., 318 , Walker, J., in referring to the case of Gregg v. Wilmington, said: “The city did not actually cooperate with Wolvin in committing the wrong to the plaintiff’s intestate. . . . "Where two or more persons have participated in the commission of a wrong, the general rule undoubtedly is that a right to contribution or indemnity will not arise in favor of the one held responsible by the injured party.”

Applying these tests to the ease at bar, it appears that the defendant, J. A. Jones Construction Company, was charged with notice of the dangerous condition of the premises, occasioned by the probability of-falling beams, bolts, rivets and other construction material. The danger was so apparent that the foreman of the Jones Construction Company complained to the architect and requested that he require its codefendant Markham to furnish adequate protection for the workmen. Nothing was done by either defendant. The defendant, Jones Construction Company, owed the plaintiff the positive and nondelegable duty to exercise ordinary care in furnishing a reasonably safe place to work. The record' discloses- an open and continuous violation of this positive duty, notwithstanding full and ample knowledge of the danger incident to the work. In truth, the jury found in response to the second issue that the plaintiff was injured by reason of the negligence of the Construction Company.

Under these circumstances it is apparent that the negligence of the l! Construction Company cooperated with the .negligence of Markham, the !, steel erector. Both parties actively participated in the injury to the plaintiff. In the language of Doles v. R.

R., supra:

“The two acts concurred in producing the injury, and, upon the assumption that the express company was negligent, it and the railroad company were joint tort-feasors, as to the plaintiff and as between themselves, and there is no right of indemnity or contribution.”

We are, therefore, of the opinion, and so hold, that the trial judge was correct in refusing to submit an issue as to primary and secondary liability.

*34 There is another exception relating to the charge of the court. Even if it be conceded that the charge complained of constituted error, it was essentially miscroscopic error. Moreover, the trial judge repeatedly announced the correct principle as to the burden of proof.

No error.