EDGAR OTTO SHAW, JR. v. WELLMON EAVES, MABLE WHITTENBURG, LOUIS CARSON and WILLIE CARSON, 262 N.C. 656

Mooee, J. All parties agree that the judgment of the general county court in the action instituted by Willie Carson is a valid, binding, final judgment. We are concerned here with its effect on the rights of the parties in the action instituted by Shaw in the superior court.

(1) The superior court judge granted Willie Carson’s motion for judgment on the pleadings and entered judgment in the superior court-case that Willie Carson recover of plaintiff Shaw $35,000 on his counterclaim, and that Louis Carson recover of plaintiff Shaw such sums, on his counterclaim, for damage to his automobile, “as a jury may hereafter determine.” In effect, the superior court judge entered judgment in Shaw’s superior court case in favor of the Carsons upon the verdict of the jury in general county court in the Willie Carson action.

The general county court could not have entered judgment in favor of Willie Carson against Shaw upon the verdict in that court. In general county court Willie Carson sued Eaves and Eaves joined Shaw for contribution (G.S. 1-240); the verdict was such as to permit judgment in favor of Willie Carson against Eaves, and in favor of Eaves against Shaw for contribution. Willie Carson sought no affirmative relief against Shaw in that action. We held in Pascal v.

Transit Co., 229 N.C. 435, 50 S.E. 2d 534, that where plaintiff seeks no affirmative relief against an additional defendant joined by the original defendant for the purpose of enforcing contribution against the additional defendant as a joint tort-feasor, it is error for the court to enter joint and several judgments in favor of plaintiff against both defendants upon the jury’s finding that both the original defendant and the additional defendant were guilty of actionable negligence, since the liability of the additional defendant is solely to the original defendant on the latter’s claim for contribution.

Since the general county court could not enter an affirmative judgment in favor of Willie Carson against Shaw upon the verdict in that court, neither can the superior court in an entirely different action on motion for judgment on the pleadings. A fortiori, the superior court could not enter judgment against Shaw in favor of Louis Carson, who was not a party to the action in the general county court. A motion for judgment on the pleadings is similar to a demurrer. In determining such motion the court’s decision must be based upon the facts alleged on the one hand and admitted on the other.

The court should not hear extrinsic evidence or make findings of fact. The motion raises a question of law, whether the matters set up in the pleadings of an opposing party are sufficient in law to constitute a cause of action or a defense. When a party moves for judgment on the pleadings, he admits for the purposes of the motion (1) the truth of all well pleaded facts in the pleadings of his adversary, together with all fair inferences to be drawn from such facts, and (2) the untruth of his own allegations insofar as they are controverted by the pleadings of his adversary.

The law does not authorize the entry of a judgment on the pleadings in any case where the pleadings raise an issue of fact on any single material proposition. Erickson v. Starling, 235 N.C. 643, 71 S.E. 2d 384; 41 Am. Jur., Pleading, §§ 335-339; pp. 520-523. Shaw’s complaint and the answers of defendants, including the counterclaims of defendants Carson, raise issues as to negligence, contributory negligence and damages. The defendants Carson amended their answers and set up the judgment roll in the general county court case and pleaded the same in bar of Shaw’s action in superior court.

In reply Shaw admitted the correctness of the judgment roll in general county court, denied that it bars his action, and asserted that if it does bar his action the estoppel is mutual and it also bars Carsons’ counterclaims. Certainly the judgment of the general county court cannot be the basis for an affirmative judgment on the pleadings, including an award of damages, in favor of the Carsons, unless it is a complete bar to plaintiff Shaw’s action and also estops him to deny the truth of the counterclaims.

(2) We now come to a consideration of the pleas of res judicata as between plaintiff Shaw and defendants Carson in the superior court case. “The doctrine of res judicata as stated in many cases is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.” 30A Am. Jur., Judgments, § 324, p. 371.

In order for a judgment to constitute res judicata in a subsequent action there must be identity of parties, subject matter, issues and relief demanded, and it is required further that the estoppel be mutual. Light Co. v. Insurance Co., 238 N.C. 679, 79 S.E. 2d 167; Stansel v. McIntyre, 237 N.C. 148, 74 S.E. 2d 345; Cameron v. Cameron, 235 N.C. 82, 68 S.E. 2d 796; Leary v. Land Bank, 215 N.C. 501, 2 S.E. 2d 570.

In order for a party to be barred by the doctrine of res judicata, it is necessary not only that he should have had an opportunity for a hearing but also that the identical question must have been considered and determined adversely to him. Crosland-Cullen Co. v. Crosland, 249 N.C. 167, 105 S.E. 2d 655. Recent cases involving the doctrine of res judicata seem to indicate that a prior judgment will work an estoppel only if the rights and liabilities of the parties were put in issue so that they were actually adverse parties in the prior case. See Hill v. Edwards, 255 N.C. 615, 122 S.E. 2d 383.

The judgment of the general county court is res judicata as to Willie Carson’s cause of action against Eaves and Whittenburg, and as to the defenses and counterclaims which were or could have been asserted by Eaves and Whittenburg against Willie Carson. But it does not necessarily follow that that judgment is res judicata as to the rights and liabilities of Willie'Carson-and Shaw inter se. A tort-feasor who is not sued by the injured -party is not privy to one who is sued. Bigelow v. Old Dominion Copper Mining and Smelting Co., 225 U.S. 111. Willie Carson did not sue Shaw in the general county court action.

An estoppel is mutual if the one taking advantage of the earlier adjudication would have been bound by it had it gone against him. Bernhard v. Band of America Nat. Trust & Sav. Ass’n., 122 P. 2d 892. In Powell v. Ingram, 231 N.C. 427, 57 S.E. 2d 315, plaintiffs sued original defendants and the original defendants joined the additional defendant for contribution; the jury found that plaintiffs were not injured by the actionable negligence of the original defendants and judgment was entered against plaintiffs.

The opinion states that “The question of the liability of Sanders (additional defendant) to plaintiffs was not at issue on the trial, and in consequence the judgment does not preclude the plaintiffs from suing Sanders in case they desire to do so.” It is clear that even if Willie Carson had not prevailed in his action against Eaves in general county court and judgment had been’entered against him, he could still prosecute his cause of action (counterclaim) against Shaw, the additional defendant in the superior court action.

Since he was successful against Eaves, he is in even better position to prosecute his action (counterclaim) against Shaw. An unsatisfied judgment against one tort-feasor is no bar to the prosecution of actions against other tort-feasors. 52 Am. Jur., Torts, § 127, p. 464. It is clear that the general county court judgment is not a bar to the prosecution of Willie Carson’s counterclaim against Shaw in the superior court action. It follows that it is not a bar to Shaw’s cause of action against Willie Carson and Louis Carson. Estoppel by judgment must be mutual.

The rights and liabilities of Willie Carson and Shaw inter se were not at issue in the general county court. Shaw had no opportunity to prosecute his claim against Willie Carson in that court. When an additional defendant is joined by an original defendant for contribution in an action ex delicto, the latter is plaintiff as to the former, the question for determination is the liability, if any, of the additional defendant to the original defendant, and the plaintiff and additional defendant are not in law adversaries. Jenkins v. Fowler, 247 N.C. 111, 100 S.E. 2d 234; Norris v.

Johnson, 246 N.C. 179, 97 S.E. 2d 773; Powell v. Ingram, supra; Charnock v. Taylor, 223 N.C. 360, 26 S.E. 2d 911. It is elementary and fundamental that every person is entitled to his day in court to assert his own rights or to defend against their infringement. Coach Co. v. Burrell, 241 N.C. 432, 85 S.E. 2d 688. It is true that the jury in general county court found that Willie Carson was injured by the negligence of Shaw, “as alleged in defendant Eaves' answer and cross-action.” But this related to the liability of Shaw to Eaves, not of Shaw to Willie Carson.

Shaw and Willie Carson have not had their day in court as adversaries. The judgment of the superior court will be vacated and set aside insofar as it adjudges that the judgment of the general county court is a bar to plaintiff Shaw’s cause of action against Willie Carson and Louis Carson, that the action against Willie Carson and Louis Carson is dismissed, and that Willie Carson and Louis Carson have judgment on the pleadings as specified. This cause will stand for trial upon the issues raised by plaintiff Shaw’s and Willie Carson’s and Louis Carson’s pleadings (exclusive of the pleas of res judicata).

(3) The judgment of the general county court is a bar to plaintiff Shaw’s action against Eaves and Whittenburg, and any counterclaim which Eaves and Whittenburg might attempt to assert against Shaw. Pittman v. Snedeker, 261 N.C. 365, 134 S.E. 2d 622; Hill v. Edwards, supra; Jenkins v. Fowler, supra. But Eaves will not be dismissed from the action. Should Willie Carson obtain a judgment on his counterclaim against plaintiff Shaw, Shaw will be entitled to contribution from Eaves. Stansel v. McIntyre, supra. The judgment in general county court established that Eaves and Shaw are, as between themselves, joint tort-feasors as to Willie Carson. Error and remanded.