The opinion
WOOLVIN'S APPEAL.
The defendant Woolvin demurred to the city's answer upon the following grounds:
1. That the city denies that he was negligent, and yet asks judgment against him because he was.
(32) The city, in its answer, does allege that Woolvin was not negligent and then avers that, if he was, his liability is primary and that, if it is made to pay damages, judgment should be given for it, so that it may be indemnified and reimbursed for what it will have to pay on account of Woolvin's negligence in piling the bricks. It was proper to plead in this way. If Woolvin was not negligent, or rather, if the intestate's death was not caused by his negligence in piling the brick, the city would not be liable, and the other branch of the pleading is predicated upon a possible adverse finding upon that issue, in which case the city asserts its right to recover against Woolvin. There is nothing even inconsistent in the two allegations.
2. That it must be determined that the city is liable before it can be adjudged that Woolvin is liable to indemnify the city and subjected to a judgment in its favor for his wrong to the plaintiff.
This is true, but the two questions can be settled, as we have said in the city's appeal in this action, and the judge will instruct the jury, upon the issues, as to the liability of the respective parties, the defendants, one or both of them, to the plaintiff, and of Woolvin to the city.
The court properly overruled the demurrer of Woolvin to the answer of the city. We do not think that Dillon v. Raleigh , 124 N.C. 184 , is an authority in support of the demurrer. The point was not presented by proper exception and appeal in that case, and the court did not profess to pass upon it. The authorities cited by us in the opinion delivered in the appeal of the city amply sustain the order of the court overruling the demurrer, and it is not necessary to repeat them here.
The other exceptions of the defendant Woolvin are not tenable, in the present state of the case, and require no special or separate discussion at this time. We give no opinion in regard to them. This appellant's brief indicates that he is content with the decision in the city's appeal, by which we granted a new trial of all the issues, but whether so or not, there was no error committed by the court in this appeal.
No error.
Cited: Comrs. v. Indemnity Co., post , 225; Sircey v. Rees, post , 300; Bailey v. Winston , 157 N.C. 260 ; Doles v. R. R. , 160 N.C. 320 ; Lucas v. R. R. , 165 N.C. 268 ; McDonald v. R. R., ibid. , 626; Guthrie v. Durham, 169 N.C. 575 , 576 ; Conway v. Ice Co. , 169 N.C. 578 . *Page 27
(33)