#### ROBERT FREEMAN v. C. W. THOMPSON.

(Filed 8 November, 1939.)

1. Pleadings § 6 — Defendant may set up as many defenses as he has.

A defendant may plead as many defenses as he has, and it is not required that the defenses be consistent with each other, and therefore a defendant in a negligent injury action may enter a general denial of the allegations of negligence, and also allege that the negligence of a third person was the sole proximate cause of the accident, and that if defendant was negligent, such negligence concurred with the negligence of the third person, and move to have such third person joined as a defendant.

2. Torts § 6: Parties § 10 — Defendant in negligent injury action is entitled to joinder of third person upon allegations that such person was joint tort-feasor.

When a defendant in a negligent injury action denies negligence and alleges that the negligence of a third person is the sole proximate cause of the injury, and that if defendant was negligent his negligence concurred with the negligence of such third person, the defendant is entitled to have such third person joined as a defendant upon the allegation of joint negligence upon motion duly made, C. S., 618, as amended, the purpose of the statute being that the entire controversy between joint tort-feasors should be settled in one action.

3. Appeal and Error § 2—

A defendant in a negligent injury action may appeal from the denial of his motion to have a third person joined as a defendant upon allegation that such third person was a joint tort-feasor, since the denial of the motion directly affects a substantial right. C. S., 632.

Appeal by defendant from *Bolbiit, J.,*at March Term, 1939, of Ibedell.

Eeversed.

This is an action for actionable negligence. The plaintiff seeks to recover damages against the defendant in this action alleging negligence on the part of the defendant in the operation of bis automobile, and the defendant denies negligence, and sets forth facts which, he alleges, constitute negligence on the part of John Campbell, driver of the car in which the plaintiff was riding. In his prayer for relief, the defendant asks that John Campbell be made a party defendant in the action under the provisions of section 618 of the North Carolina Code, 1935 (Michie). Upon hearing, the clerk of the Superior Court of Iredell County entered an order in the cause on 28 February, 1939, making John Campbell a party defendant to the action. From this order the plaintiff appealed to the Superior Court. A hearing upon the appeal was heard before his Honor, Judge Bobbitt, at the March Term of the Iredell Superior Court. At the conclusion of the arguments of counsel, an order was *485signed by Judge Bobbitt reversing the order signed by the clerk of the Superior Court. To the signing of the order the defendant excepted, assigned error and appealed to the Supreme Court of North Carolina.

The other necessary facts will be set forth in the opinion.

*Scott ■& Collier for plaintiff.*

*Adams, Dearman .& Winberry for defendant.*

Clarkson, J.

N. C. Code, 1935 (Michie), sec. 618, in part, is as follows: “In all cases in the courts of this State wherein judgment has been, or may hereafter be, rendered against two or more persons or corporations, who are jointly and severally liable for its payment either as joint obligors or joint tort-feasors, and the same has not been paid by all the judgment debtors by each paying his proportionate part thereof; if one of the judgment debtors shall pay the judgment creditor, either before or after execution has been issued, the amount due on said judgment, and shall, at the time of paying the same, demand that said judgment be transferred to a trustee for his benefit, it shall be the duty of the judgment creditor or his attorney to transfer without recourse such judgment to a trustee for the benefit of the judgment debtor paying the same; and a transfer of such judgment as herein contemplated shall have the effect of preserving the lien of the judgment and of keeping the same in full force as against any judgment debtor who does not pay his proportionate part thereof to the extent of his liability thereunder in law and in equity, and in the event the judgment was obtained in an action arising out of a joint tort, and only one, or not all of the joint tort-feasors, were made parties defendant, those tort-feasors made parties defendant, and against whom judgment was obtained, may, in an action therefor, enforce contribution from the other joint tort-feasors; or at any time before judgment is obtained, the joint tort-feasors made parties defendant may, upon motion, have the other joint tort-feasors made parties defendant,” etc.

In *Bargeon v. Transportation Co.,*196 N. C., 776 (777), it is said: “Can one defendant, sued alone for personal injury, file an answer denying negligence and liability, and then proceed to allege that the injury was due to the specific acts of negligence of a third party, and thereupon, without asking relief against such party, have such party brought into the suit? It is well settled under our system of procedure that in order to hold a party in court a cause of action must be alleged against him. If a defendant against whom a cause of action exists alleges a cause of action against a codefendant, growing out of the same matter, then all the parties are in court and the causes must be tried upon their merits. *Bowman v. Greensboro,*190 N. C., 611, 130 S. E., *486502; *Ballinger v. Thomas,*195 N. C., 517, 142 S. E., 761. . . . Tbe amendment of C. S., 618, enacted 27 February, 1929, permitting contribution between joint tort-feasors, does not of course apply to tbe case at bar, for tbe reason tbat tbe amendment creating sucb a cause of action was passed after tbis suit was commenced.” Tbe present action was instituted after tbe enactment of section 618, *supra.*

Upon tbe pleadings in tbis cause defendant is entitled to tbe following defenses: (1) General denial of negligence. (2) Sole negligence on tbe part of John Campbell. (3) Joint and concurring negligence.

Section 522 provides: “Several defenses — Tbe defendant may set forth by answer as many defenses and counterclaims as be bas, whether they are of a legal or equitable nature, or both. They must be separately stated and numbered, and refer to tbe cause of action which they are intended to answer in sucb manner tbat they may be intelligibly distinguished.”

In discussing tbe question of defenses, and after quoting tbe above statute, McIntosh, N. C. Prac. & Proc. in Civil Cases, at p. 490, says: “It is not required tbat tbe pleas be consistent with each other, but tbe defendant may plead as many defenses as be may have, whether consistent or inconsistent with each other.”

Tbe defendant in bis answer says, in part: “Tbat without repeating, tbe defendant denies tbat tbe plaintiff was injured because of tbe negligence of tbis defendant, as alleged in tbe complaint, as be bas heretofore specifically set forth, and reaffirms and realleges tbat if tbe plaintiff received any injuries by reason of tbe collision, sucb injuries were caused by bis own negligence or by tbe negligence of John Campbell, or by their joint negligence; but, in truth and in fact, if tbis defendant was negligent in any manner as alleged in tbe plaintiff’s complaint, be is informed and believes and so alleges tbat sucb negligence on bis part concurred with tbe negligence of John Campbell, and sucb negligence on tbe part of both of them was tbe proximate cause of tbe plaintiff’s injuries, and sucb joint and concurring negligence continued until tbe actual time of tbe collision and tbe resultant injuries, if any, to tbe plaintiff.”

Tbe defendant, among other things, prays: “Tbat tbe verified answer filed in tbis cause be treated as an affidavit and motion to have John Campbell made a party defendant in tbis action. Tbat an order be issued from tbis court making John Campbell a party defendant to tbis action under tbe provisions of section 618 of the North Carolina Code, 1935 (Micbie). Tbat if it is determined tbat tbe plaintiff was injured by tbe joint and concurring negligence of tbe defendant and John Campbell, as alleged in tbis answer, tbe defendant have and secure judgment against John Campbell in sucb a manner and in sucb amount as is provided in section 618 of tbe North Carolina Code, *supra.”*

*487In *Mangum v. R. R.,*210 N. C., 134 (137), speaking to tbe subject, it is said: '“In accordance with tbis section (618), tbe defendants Southern Eailway Company and North Carolina Eailroad Company (original parties), prayed that tbe receivers of Seaboard Air Line Eail-way Company, residents of Virginia, be made parties defendant, and allege that they are not guilty of negligence; but further allege, in substance, that if they are guilty of negligence they are liable only as joint tort-feasors with tbe receivers. *We*think that tbis procedure is permissible under tbe section, *supra.*Tbe plaintiff, from her allegations in tbe complaint against tbe original defendants, cannot be affected by tbis procedure of tbe original defendants under tbe statute bringing in tbe receivers as joint tort-feasors.” *Hamilton v. R. R.,*203 N. C., 468 (471).

Tbe purpose of section 618, *supra,*is to settle tbe conflicting joint tort claims in one action. Tbe plaintiff could have made Campbell a party defendant, as a joint tort-feasor. Tbe defendant under tbe statute has prayed that be be made a party defendant to tbe end that tbe entire controversy can be settled in one action under section 618, *supra. We*think tbe language and intention of tbe statute was to settle a controversy of tbis kind in one action.

N. C. Code, *supra,*section 632, is as follows: “Any party aggrieved may appeal in tbe cases prescribed in tbis chapter.” McIntosh, N. 0. Prae. & Proc. in Civil Cases, pp. 767-8. “And a 'party aggrieved’ is one whose right has been directly and injuriously affected by tbe action of tbe court.”

Unnecessary parties and jungle pleadings in an action should not be allowed, but tbe statute opens tbe door so that all joint tort-feasors can be brought in for a complete determination of tbe controversy.

For tbe reasons given, tbe judgment of tbe court below is

Eeversed.