Yates v. New South Pizza1/31/1992
, words of general import ("one or more persons liable in tort") are followed by specific language ("tort-feasors"). Thus, the generalized language, to which the majority attaches such great importance, seen in the context of the later, more specific terms, in no way can be seen to validate the majority's Conclusion that a vicariously liable master is subject to N.C.G.S. § 1B-4.
Also, it is plain from the nature of N.C.G.S. § 1B-4 itself that the majority errs in the application of that statute altogether. N.C.G.S. § 1B-4 is contained in the "Uniform Contribution Among Tortfeasors Act" and as such pertains only to contribution. Equipment Finance Corp. v. Scheidt, 249 N.C. 334, 106 S.E.2d 555 (1959) (when meaning of statute is in doubt, reference may be had to title and context in order to ascertain legislative intent). It is hornbook law that "rights of contribution and indemnity are mutually inconsistent; the former assumes joint fault, the latter only derivative fault." Edwards v. Hamill, 262 N.C. 528, 531, 138 S.E.2d 151, 153 (1964); see also State Farm Mut. Auto Ins. Co. v. Holland, 324 N.C. 466, 471, 380 S.E.2d 100, 102 (1989) (no right of contribution unless both parties are active tort-feasors). Indeed, the distinction between the doctrines of indemnity and contribution is explicitly
preserved by N.C.G.S. § 1B-1(f), which provides: "This Article does not impair any right of indemnity under existing law." N.C.G.S. § 1B-1(f) (1988). Because New South Pizza is at best "derivatively" liable here, contribution is not implicated. Therefore, the common law principle that the discharge of the servant requires the discharge of the master, rather than N.C.G.S. § 1B-4, should control. See Smith v. R.R., 151 N.C. 479, 66 S.E. 435 (1909).
The majority cites eight cases for the proposition that, under the Uniform Act, a release of the servant does not release the master. Three of the cases, Blackshear v. Clark, 391 A.2d 747 (Del. 1978), Smith v. Raparot, 101 R.I. 565, 225 A.2d 666 (1967), and Krukiewicz v. Draper, 725 P.2d 1349 (Utah 1986), interpret the 1939 Model Act, which contained the "joint tort-feasor" language not contained in the 1955 Act or in our Act. Two cases cited, Harris v. Aluminum Co. of America, 550 F. Supp. 1024 (W.D. Va. 1982), and Thurston Metals & Supply Co v. Taylor, 230 Va. 475, 339 S.E.2d 538 (1986), interpreted a contribution statute not containing the important indemnity provision contained in ours. A sixth case, Brady v. Prairie Material Sales, Inc., 190 Ill. App. 3d 571, 546 N.Ed.2d 802 (1989), is from a jurisdiction in which the circuit courts are divided on this issue. See Bristow v. Griffitts Constr. Co., 140 Ill. App. 3d 191, 488 N.E.2d 332. There are a substantial number of cases that hold to the contrary. See, e.g., McCall v. Roper, 685 P.2d 230 (Colo. Ct. App.) (vicarious liability theory of family car doctrine, like master-servant, does not make defendants joint tort-feasors); Bristow v. Griffitts Constr. Co., 140 Ill. App. 3d 191, 488 N.E.2d 332 (respondeat superior theory involving employer-employee as defendants does not make defendants joint tort-feasors); Elias v. Unisys Corp., 410 Mass. 479, 573 N.E.2d 946 (same); Theophelis v. Lansing General Hosp., 430 Mich. 473, 424 N.W.2d 478 (same); Kinetics, Inc. v. El Paso Products Co., 99 N.M. 22, 653 P.2d 522 (Ct. App.) (same); Mamalis v. Atlas Van Lines, Inc., 522 Pa. 214, 560 A.2d 1380 (respondeat superior theory involving principal-agent does not make
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