{
  "id": 8621443,
  "name": "T. L. READ, Ancillary Administrator of the Estate of HELEN LEWIS READ, v. YOUNG ROOFING COMPANY and ELIJAH JUNIOR LANGLEY (Original Defendants), and ROSA PALMER (Additional Defendant)",
  "name_abbreviation": "Read v. Young Roofing Co.",
  "decision_date": "1951-10-10",
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  "first_page": "273",
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  "last_updated": "2023-07-14T19:34:56.500685+00:00",
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    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "T. L. READ, Ancillary Administrator of the Estate of HELEN LEWIS READ, v. YOUNG ROOFING COMPANY and ELIJAH JUNIOR LANGLEY (Original Defendants), and ROSA PALMER (Additional Defendant)."
    ],
    "opinions": [
      {
        "text": "Devist, C. J.\nWe think the portions of the pleading quoted above, considered in connection with other allegations of fact set out in defendant\u2019s answer and cross-action, are sufficient to state a cause of action for contribution against the appellant as joint tort-feasor, as permitted by the statute Gr.S. 1-240, and that the demurrer was properly overruled.\nThe appellant\u2019s position is that in defendant\u2019s cross-action to which the demurrer was addressed it was alleged that Rosa Palmer\u2019s negligence was the sole proximate cause of the injury, and that she and plaintiff\u2019s intestate were joint adventurers, and therefore the plaintiff was barred by her negligence. But it will be noted that in the pleading challenged by the demurrer it was also alleged that if the facts so set up as a defense be found against the defendant, then the negligence of Rosa Palmer concurred with that of the defendant in causing the injury, and that she was liable to defendant for contribution as joint tort-feasor. Freeman v. Thompson, 216 N.C. 484, 5 S.E. 2d 434.\nThe rule in this jurisdiction is that as against a demurrer a pleading will be liberally construed in favor of the pleader, and that if in any portion or to any extent the pleading presents facts sufficient to constitute a cause of action it will be upheld. Blackmore v. Winders, 144 N.C. 212, 56 S.E. 874; Wiscassett Mills Co. v. Shaw, Comr., 233 N.C. 71, 62 S.E. 2d 487; Bryant v. Ice Co., 233 N.C. 266, 63 S.E. 2d 547. And a demurrer requires search of the entire record. Harris v. Fairley, 232 N.C. 551, 61 S.E. 2d 616.\nThe purpose of the statute permitting the joinder of a third party against whom the defendant seeks contribution as joint tort-feasor (G-.S. 1-240), was to enable litigants in tort actions to determine in one action all matters in controversy growing out of the same subject of action. Freeman v. Thompson, 216 N.C. 484, 5 S.E. 2d 434; Evans v. Johnson, 225 N.C. 238, 34 S.E. 2d 73.\nIn Evans v. Johnson, supra, the demurrer to defendant\u2019s cross-action for contribution was sustained, but the ruling there was predicated on allegations in a material respect differing from those in the case at bar. For the same reason demurrer was sustained in Walker v. Loyall, 210 N.C. 466, 187 S.E. 565, where the allegation was not one of joint tort-feasorship.\nThe judgment overruling the demurrer in this case is\nAffirmed.",
        "type": "majority",
        "author": "Devist, C. J."
      }
    ],
    "attorneys": [
      "Perry & Kittrell for Young Roofing Company, Appellee.",
      "Gholson & Gholson for Rosa Palmer, Appellant."
    ],
    "corrections": "",
    "head_matter": "T. L. READ, Ancillary Administrator of the Estate of HELEN LEWIS READ, v. YOUNG ROOFING COMPANY and ELIJAH JUNIOR LANGLEY (Original Defendants), and ROSA PALMER (Additional Defendant).\n(Filed 10 October, 1951.)\n1. Pleadings \u00a7 10: Torts \u00a7 4: Automobiles \u00a7 21\u2014\nAn answer alleging that tbe driver of the car in which intestate was riding was guilty of negligence constituting the sole proximate cause of the collision with defendant\u2019s truck, and that intestate and the driver of the car were engaged in a joint enterprise so that the driver\u2019s negligence barred recovery against defendant for intestate\u2019s death, but further alleging that if the facts so set up as a defense be found against defendant, then the negligence of the driver of the car concurred with that of defendant, and demanding contribution against the driver of the car, held good as against demurrer interposed by the driver of the car. G.S. 1-240.\n2. Pleadings \u00a7 19c\u2014\nA pleading will be liberally construed upon demurrer, and the pleading will be upheld if in any portion or to any extent it presents facts sufficient to constitute a cause of action.\n3. Torts \u00a7 4\u2014\nThe purpose of the statute permitting the joinder of a third party as a joint tort-feasor against whom the defendant seeks contribution, is to enable the litigants to determine in one action all matters in controversy growing out of the same subject of action.\nAppeal by Rosa Palmer, additional defendant, from Carr, J., January Term, 1951, of Wae\u00fceN.\nAffirmed.\nThe demurrer of Rosa Palmer, additional defendant, to the cross-action of defendant Roofing Company, was overruled and she appeals.\nThe action grew out of a collision on the highway between an automobile in which plaintiff\u2019s intestate Helen Lewis Read was riding, and the motor truck of defendant Roofing Company being driven at the time by its employee Langley. As result of the collision Helen Lewis Read received injuries resulting in her death, and her administrator instituted this action against the defendants to recover damages for her wrongful death (G-.S. 28-173), alleging negligent operation of the truck of defendant Roofing Company by its employee Langley. Langley did not answer.\nDefendant Roofing' Company, answering, denied negligence on the part of its driver, and further alleged that Rosa Palmer, who was driving the automobile in which the intestate was riding, was negligent in the operation of the automobile (setting out the acts of negligence on her part complained of), and that her negligence was the sole proximate cause of the collision and consequent injury; that Rosa Palmer and the intestate were at the time engaged in a joint enterprise, and that plaintiff\u2019s action was barred by Rosa Palmer\u2019s negligence. Further, by way of cross-action against Rosa Palmer defendant alleged if it be found that defendant was negligent as alleged in the complaint, and that plaintiff\u2019s intestate and Rosa Palmer were not joint adventurers, \u201cthen the negligence of Rosa Palmer as set forth in paragraph 1(a) of this cross-action concurred with the negligence of this defendant and proximately caused the damage to plaintiff\u2019s intestate, and this defendant is entitled to judgment over and against the said Rosa Palmer as a joint tort-feasor.\u201d\nRosa Palmer having been made party defendant, demurred to the defendant\u2019s cross-action on the ground that the allegations upon which this relief was sought were insufficient to constitute a cause of action for contribution.\nThe demurrer was overruled and Rosa Palmer excepted and appealed.\nPerry & Kittrell for Young Roofing Company, Appellee.\nGholson & Gholson for Rosa Palmer, Appellant."
  },
  "file_name": "0273-01",
  "first_page_order": 319,
  "last_page_order": 321
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