#### WILLIAM CARR GUTHRIE v. CITY OF DURHAM.

(Filed 7 April, 1915.)

f. Parties — Courts—Discretion.

Tlie refusal of the trial court to make parties not necessary to the controversy rests within the discretion of the trial judge, which is not reviewable.

2. Same — Tort Feasors — Separate Degree of Liability.

Where two tort feasors are sued for damages arising from an act for which one of them is primarily liable, and subject to an action for the commission of the same tort by the other one, who is secondarily liable, it being the policy of the law to determine controversies of this character in one action rather than in two, it is reversible error, when the plaintiff has brought his action against the one secondarily liable, to-refuse, at the instance of the defendant or of both tort feasors, to permit the one primarily liable to become, a party defendant and set up and show his defense for the benefit of them both.

3. Same — Contribution.

While ordinarily there is no contribution between tort feasors, and a recovery against 'one joint feasor sued alone will not permit a recovery by him against the other, this principle will not apply when their liability for the act committed is not in the same degree, one of them being a primary liability and the other a secondary one; for when the action is solely against the one secondarily liable, he has not the same incentive for resisting a recovery.

*5744. Parties — Court’s Discretion — Tort Feasors — Municipal Corporations — Excavation — Degrees of Liability.

Where a municipality permits a property owner to excavate along the sidewalk of its. streets, who, while the excavation is being dug, surrounds it with a fence, which gives way while a pedestrian is leaning thereon, who, being injured, brings his action against the city alone for alleged negligence in permitting a dangerous condition to exist, the negligent act of the property owner would be antecedent, in point of time, to that of the city, in failing to exercise a proper degree of supervisory care; and the liability of the city is secondary to that of the property owner who caused the excavation to be made.

Hoke, J., dissenting; Allest, J., concurring in dissenting opinion.

Appeal by defendant from Daniels, J., at November Term, 1914, of DURHAM.

Fuller & Beade for plaintiff.

Charles Scarlett and Victor'S. Bryant for defendant.

Clark, O. J.

Tbis is an appeal from tbe refusal of tbe court to grant tbe motion of tbe defendant to make A. E. Lloyd a party defendant.

Tbe plaintiff, wbo was an infant 11 years of age at tbe time of tbe injury complained of, brings tbis action by bis next friend against tbe city of Durham for damages caused by its alleged negligence in permitting a dangerous excavation, immediately adjoining- one of its streets, to be insufficiently guarded and protected, alleging that tbis negligence resulted in injuries to tbe plaintiff. A. E. Lloyd, wbo was owner of tbe lot upoii wbicb tbe excavating was done, in excavating for tbe foundations for bis building, desiring an entrance through tbe sidewalk to bis basement, excavated under tbe width of tbe sidewalk for tbe whole extent of bis lot. It appears from tbe answer that Lloyd erected a plank .fence .across tbe sidewalk and along tbe edge of tbe street to prevent those using tbe sidewalk from falling into tbe excavation. Tbis fence was 4% or 5 feet high. On Sunday, 2 August, 1914, there was a heavy rainfall wbicb caused tbe dirt sustaining tbis fence to give way. Those in charge of tbe work were engaged in making the- fence more secure when tbe plaintiff rode up on bis bicycle and leaned against tbe fence. When warned to leave, be did not do so, but leaned against tbe fence, wbicb gave way, tumbling him and bis bicycle into tbe excavation, and in falling bis arm became entangled in tbe bicycle and was broken.

Tbe city of Durham, upon tbe allegations set up in its answer, moved to'have A. E. Lloyd made a party. Upon notification of said motion, Lloyd appeared and asked to be made a party, that be might make bis defense, but tbe court declined the motion, and tbe defendant excepted.

Tbe making of new parties defendants where they are not necessary is a matter within the discretion of tbe trial judge, and bis refusal is not reviewable. Aiken v. Mfg. Co., 141 N. C., 339. But in tbis case, if *575there should be a recovery against the defendant the city of Durham, A. E. Lloyd would be liable to the city, and it could recover in an action against him. It is the policy of the law to determine a controversy in one action rather than several, when it can be done. Besides, A. E. Lloyd is entitled to a day in court, and it is but just that he should have an opportunity to defend the suit against the city in order to defeat a recovery, or to reduce the amount for which he must answer over, by setting up his defense in his own way and through his> own counsel. The city has not the same interest in defeating the action,' or in reducing the amount, if it can recover over against a solvent party. This has been fully discussed and settled in several cases. Dillon v. Raleigh, 124 N. C., 184; Brown v. Louisburg, 126 N. C., 701; Raleigh v. R. R., 129 N. C., 265; Gregg n. Wilmington, 155 N. C., 18.

The discussion in Gregg v. Wilmington, supra, is very full and elaborate, citing authorities from the Federal Supreme Court and several States as well as those from North Carolina. Walker, J., says: “The Code contemplates this method of trial to avoid circuity and multiplicity of actions.”

It is true that there is no contribution between tort feasors, and that ordinarily where there is a recovery against one joint tort feasor sued alone, he cannot recover of the other tort feasors. But there is an exception when, as in this case, there is evidence tending to show that Lloyd is primarily liable, if there was negligence, and the city secondarily so. In the Gregg case, Walker, J., points out that the exceptions to the rule that there is no contribution among joint wrongdoers is subject to two exceptions: “(1) Where the party claiming indemnity has not been guilty of any fault, except technically or constructively, as where an innocent master is held to respond for the tort of his servant acting within the scope of his employment; or (2) where both parties have been in fault, but not in the same fault, towards the party injured, and the fault of the party from whom indemnity is claimed was the primary and efficient cause of the injury. Very familiar illustrations of the second class are found in cases of recovery against municipalities for obstructions to highways caused by private persons. The fault of the latter is the creation of the nuisance, that of the former the failure to remove it in the exercise of its duty to care for the safe condition of the public streets; the first was a positive tort and the efficient cause of the injury complained of, the latter the negative tort of neglect after notice express or implied,” citing many cases.

The fact that the plaintiff could sue both the city of Durham and Lloyd does not determine that they are both liable in the same degree. It is true that the city gave Lloyd the permit to make the excavation and was charged with the duty of supervising his operations to prevent in*576jury to tbe public, and if it neglected to do so, it is liable to tbe plaintiff. But tbe primary liability may be upon Lloyd, there being evidence tending to sbow tbat bis negligence, if any, was antecedent to tbat of tbe city if it was negligent in not giving efficient supervision.

Upon tbe facts set out in the answer tbe defendant tbe city of Durham was entitled to have Lloyd made a defendant, and be was a fortiori entitled to have bis motion, to come in and defend tbe action, granted.

Reversed.

Hoke, J.,

dissenting: On tbe facts presented, while-A. E. Lloyd may be a desirable, be is not a necessary party, and under our decisions, as I interpret them, where this is true, tbe question of making him a party is referred to tbe discretion of tbe trial court. Aiken v. Mfg. Co., 141 N. C., 339. Although there may be a condition of primary and secondary liability as between Lloyd and tbe city of Durham, tbe negligent acts of both having concurred in producing a single injury, tbe authorities are tbat, with or without concert between them as to plaintiff and bis cause of action, they are considered as joint tort feasors, and unless tbe court below otherwise orders, be has tbe election to sue and proceed against them together or separately, as be may be advised. Hough v. R. R., 144 N. C., 692; Clark v. Guano Co., 144 N. C., 64; 38 Cyc., 490 et seq.; 28 Cyc., 1463.

There is nothing in Gregg v. Wilmington tbat necessarily militates against this view. In Gregg’s case all tbe persons involved in tbe alleged tort were made parties defendant, and tbe question chiefly presented was as to tbe effect and. interdependence of certain issues on tbe rights of tbe respective parties. Whether tbe plaintiff could, at bis election, have proceeded against one or all of tbe defendants was not directly involved.

In tbe opinion, however, and as to tbe nature of plaintiff’s demand, it was said, among other things: “In an action against a city and its licensee for injury caused by tbe negligent act of tbe latter, of which tbe city bad notice, their liability, as between them and tbe plaintiff, would be joint and several. . . .”

Under this principle and tbe authorities apposite, I am of opinion that tbe ruling of tbe lower court should be affirmed.

AuleN, J., concurs in the dissenting opinion of Hoke, J.