The opinion
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.