#### MRS. E. W. HOBBS v. AL GOODMAN and ETHEL GOODMAN, t/dba AL GOODMAN OF CHARLOTTE FINE SHOES, Original Defendants, and J. P. HACKNEY, JR., and GEORGE D. PATTERSON, Trustees, Additional Defendants.

(Filed 28 April, 1954.)

1. Torts § 6—

The purpose of G.S. 1-240 is to permit a defendant who has been sued in tort to bring- into the action, for the purpose of enforcing contribution, a person whom plaintiff, upon the subject matter alleged in the complaint, could have joined as a party defendant in the first instance.

2. Same: Landlord and Tenant § 33—

Plaintiff alleged that she was injured by the falling of a sign erected over a sidewalk by lessees. Defendant lessees alleged that plaintiff was injured by the falling of an awning erected by lessor prior to their occupancy, and sought to have lessor joined as a party defendant for the purpose of contribution. *Held,:*Defendants may not set up an entirely different state of facts which invoke principles of law which have no relation to the subject matter of the action as stated in plaintiff’s complaint, and thus litigate in plaintiff’s action differences between themselves and lessor.

3. Landlord and Tenant § 33: Negligence § 8—

Where plaintiff sues to recover for injuries sustained when a sign erected over a sidewalk by lessees fell and struck her, lessees are not entitled to joinder of lessor as a party defendant on the principle of primary and secondary liability, since upon the cause as set out in the complaint, lessees’ active negligence created the situation which caused the injury, and therefore lessees are primarily liable.

4. Pleadings § 15: Torts § 6—

Upon demurrer of the additional defendants to the cross-action of the original defendants, the original defendants may not maintain that plaintiff might amend so as to state a cause of action against the additional defendants as joint tort-feasors, but the demurrer must be determined upon the cause as alleged by plaintiff.

Appeal by defendants Goodman from *Rudisill, J.,*first February Begular Term 1954, MecKLENbubg. Affirmed.

*193Civil action to recover compensation for personal injuries, beard on demurrer to tbe cross action of tbe original defendants against tbe defendants trustees.

Tbe Goodmans lease a mercantile building from defendants trustees. Tbe last extension lease was executed 19 October 1951 for tbe period from 15 January 1952 to 15 January 1959.

Tbis action was instituted originally against tbe defendants Goodman, tenants under said lease. Tbe plaintiff alleges in ber complaint that tbe Goodmans, while occupying tbe building as tenants, attached a sign to tbe front of tbe building so that tbe sign projected over tbe sidewalk of North Tryon Street; that tbe sign was negligently erected in tbe particulars set forth in tbe complaint; and that on *1*July 1952, as she was walking along tbe sidewalk in front of the building, said sign fell, struck ber, and inflicted certain personal injuries.

Defendants Goodman, answering, deny all tbe material allegations contained in tbe complaint and attempt to plead contributory negligence on tbe part of plaintiff. They further plead a cross action for contribution against tbe defendants trustees. In their cross action they allege that they leased tbe building from tbe defendants trustees; that at tbe time tbe lease was executed there was attached to tbe front wall of tbe building an awning having a metal cover; that said awning was attached to tbe building prior to their first occupancy; and that it was a part of tbis metal cover — and not tbe sign — that fell and injured plaintiff. They then allege negligent erection of tbe awning in such manner that it constituted a latent defect not known to or discoverable by them. Tbe alleged negligence on tbe part of tbe defendants trustees is set forth in some detail. It is sufficient to say, without summarizing these allegations, that tbe substance of tbe alleged cross action is that tbe defendants trustees leased tbe building to tbe Goodmans in a ruinous condition and that, in tbe event tbe plaintiff recovers, tbe defendants Goodman are entitled to contribution from tbe trustees or to recover over against them under tbe doctrine of primary and secondary liability.

Tbe lease agreement of 19 October 1951, executed while tbe prior lease was in full force and effect, stipulates therein that tbe term of tbe lease shall begin 15 January 1952. Tbe lease likewise provides that tbe landlord shall not be liable for “any latent defect in tbe building.”

Said defendants pray that tbe said trustees be made parties defendant to tbe end that tbe original defendants may have judgment over against tbe trustees in tbe event plaintiff recovers judgment herein.

On 11 January 1954 tbe clerk entered an order making J. P. Hackney, Jr. and George D. Patterson as trustees parties defendant and directing that summons be issued and served on said additional defendants. Having been served with summons herein, said trustees appeared and filed a *194written demurrer for that (1) the cross action fails to state a cause of action for contribution or under the doctrine of primary and secondary liability, (2) it affirmatively appears from the allegations contained in said cross action that at the time plaintiff was injured the Goodmans were tenants, in the actual exclusive possession of the premises, and the lease agreement expressly provides that the trustees shall not be liable “for any latent defects,” and (3) (specifications of defects in the cross action which demonstrate the insufficiency thereof.).

When the cause came on for hearing on the demurrer, the court below sustained the same. Thereupon the defendants Goodman excepted and appealed.

*McDougle, Ervin, Horacio & Snepp and Robinson & Jones for defendants Goodman, appellants.*

*Pierce £ Bldkeney and R. E. Wardlow for defendants trustees, ap-pellees.*

Barnhill, C. J.

The plaintiff seeks to recover compensation for personal injuries she sustained when an advertising sign attached to the building by the Goodmans while they were in exclusive control thereof fell and struck her as she was passing in front of the building. The defendants Goodman seek to recover over against the defendants trustees on the allegation that the plaintiff was injured when a part of the metal cover of an awning attached to the building prior to their (the Good-mans’) first occupancy of the building, fell and struck plaintiff. Thus plaintiff seeks to recover on one cause of action while defendants Goodman seek contribution from, or to recover over in full against, the trustees upon an entirely different state of facts. Under these circumstances the provisions of G.S. 1-240 are not available to the original defendants.

The purpose of the Act, G.S. 1-240, is to permit a defendant who has been sued in tort to bring into the action, for the purpose of enforcing contribution, a joint tort-feasor whom the plaintiff could have joined as party defendant in the first instance. *Wilson v. Massagee,*224 N.C. 705, 32 S.E. 2d 335.

The cause of action as stated in the complaint is the subject matter of the controversy. Defendants are not permitted to litigate in plaintiff’s action differences which are not directly related thereto. To entitle the original defendant in a tort action to have some third party made an additional party defendant under G.S. 1-240 to enforce contribution, it must be made to appear from the facts alleged in the cross action that the defendant and such third person are tort-feasors in respect of the subject of controversy, jointly liable to the plaintiff for the particular wrong alleged in the complaint. The facts must be such that the plaintiff, had *195be desired so to do, could bave joined sucb third party as defendant in tbe action. *Wilson v. Massagee, supra; Evans v. Johnson,*225 N.C. 238, 34 S.E. 2d 73; *Tarkington v. Printing Co.,*230 N.C. 354, 53 S.E. 2d 369.

Tbe plaintiff alleges sbe was injured wben an advertising sign erected by tbe Goodmans fell and struck ber as sbe walked along tbe sidewalk in front of tbe building occupied by them as tenants. This sign was erected by tbe Goodmans for their own use and benefit while they were in exclusive possession of tbe premises. Negligence in tbe erection and maintenance of this sign is tbe heart of ber claim to compensation for personal injuries.

If tbe sign was negligently erected or maintained, that negligence was tbe negligence of tbe Goodmans alone. In no sense were the trustees joint tort-feasors in respect thereto. *Garrett v. Garrett,*228 N.C. 530, 46 S.E. 2d 302; *Shaw v. Barnard,*229 N.C. 713, 51 S.E. 2d 295. Indeed, tbe Goodmans do not so allege. They base their cross action on an entirely different state of facts which invoke tbe application of principles of law which bave no relation to plaintiff’s cause of action. It follows that tbe order sustaining tbe demurrer was well advised.

From what has been said heretofore, it clearly appears that tbe doctrine of primary and secondary liability has no application. Even if we concede that tbe doctrine applies, tbe Goodmans are tbe ones who were actively negligent and created tbe situation which caused tbe plaintiff’s injuries.

But tbe original defendants suggest that plaintiff may now amend ber complaint and allege that it was tbe top or cover of tbe awning, and not tbe sign, that fell and injured ber. They therefore urge us to render decision on this appeal as though sbe bad so alleged in tbe first instance. But this we may not do. *Skipper v. Yow, ante,*102. In tbe first place we must assume that plaintiff has alleged in good faith tbe facts as sbe understands them to be. In tbe second place what we might now say, in anticipation of an amendment, respecting tbe interesting questions discussed in tbe briefs would be *dicta*in which we should not — but sometimes do — indulge.

Tbe judgment entered in tbe court below is

Affirmed.