
73 S.E.2d 886 (1953)
236 N.C. 663
LOVETTE
v.
LLOYD et al.
No. 742.
Supreme Court of North Carolina.
January 6, 1953.
*890 Albert W. Kennon, Durham, for plaintiff-appellant.
Victor S. Bryant, Ralph N. Strayhorn, Durham, and Ruark, Ruark & Moore, Raleigh, for original defendants, G. D. Lloyd and M. G. Copelan, individually and trading as Lloyd & Copelan Plumbing Company, appellees.
Fuller, Reade, Umstead & Fuller, Durham, for additional defendants, Claiborne Byrd and F. L. Byrd, copartners, trading as Consolidated Painters, and U. S. Fidelity & Guaranty Co., appellants.
ERVIN, Justice.
This case is governed by the North Carolina Workmen's Compensation Act, and not by the Code of Civil Procedure. In consequence, Burgess v. Trevathan, 236 N.C. 157, 72 S.E.2d 231, has no application to it.
The controlling provisions of the Workmen's Compensation Act appear in the statute codified as G.S. § 97-10. This somewhat prolix enactment establishes the rules enunciated below to govern the conduct of civil actions against third persons who negligently inflict personal injuries upon workmen subject to the Workmen's Compensation Act, G.S. § 97-1 et seq.
1. G.S. § 97-10 prescribes in express terms that compensation shall be paid in accordance with the provisions of the Workmen's Compensation Act in any case where the injured employee may have a right to recover damages for his injury from any person other than his employer. Under this provision, the right to maintain a common law action still exists in behalf of an employee against a third party through whose negligence he is injured, even though the injury is compensable under the Act, and even though the employee actually receives compensation for it under the Act.
2. G.S. § 97-10 specifies how the liability of the negligent third party to the *891 injured employee is to be enforced. The employer or the insurance carrier, who has paid or become obligated to pay compensation to the employee injured by the negligent third party, has the exclusive right in the first instance to commence an action "in his own name and/or in the name of the injured employee" against the third party for the damages suffered by the employee on account of the injury. If neither the employer nor the insurance carrier commences the action against the negligent third party within six months from the date of the injury, the right of action passes to the injured employee, and the injured employee thereafter has the right to bring the action in his own name against the third party for the damages suffered by him on account of his injury. These statutory provisions plainly imply that the employer, or the insurance carrier, or the employee who brings the original action against the third party is to have the exclusive privilege to prosecute his action to a final determination, and that the court is not to interfere with the exercise of this exclusive privilege by making additional parties unless extraordinary circumstances compel it to do so. Another necessary implication of the statutory provision specifying how the liability of the third party to the injured employee is to be enforced is that a judgment in an action prosecuted by either the employer, or the insurance carrier, or the employee in conformity with the statute is a bar to a subsequent action on the same cause of action by any other person. 71 C.J., Workmen's Compensation Acts, § 1602.
3. G.S. § 97-10 clearly contemplates that the action against the third party is to be tried on its merits as an action in tort, and that any verdict of the jury adverse to the third party is to declare the full amount of damages suffered by the employee on account of his injury, notwithstanding any award or payment of compensation to him under the provisions of the Workmen's Compensation Act. Rogers v. Southeastern Construction Co., 214 N.C. 269, 199 S.E. 41. To this end, it enacts that "The amount of compensation paid by the employer, or the amount of compensation to which the injured employee or his dependents are entitled, shall not be admissible as evidence in any action against a third party." A necessary implication of this provision of the statute is that in the event of a verdict for the plaintiff in the action against the third party, the trial court, sitting without a jury, is to determine the amount of compensation paid or payable to the injured employee under the Workmen's Compensation Act on the basis either of a stipulation of the interested persons or of evidence submitted to it, and after so doing enter a judgment safeguarding the rights of any person entitled to share in the recovery, regardless of whether or not such person is a party to the action. Mickel v. New England Coal & Coke Co., 132 Conn. 671, 47 A.2d 181, 171 A.L.R. 1001.
4. G.S. § 97-10 requires the recovery in the action against the third party to be disbursed in a specific manner, irrespective of whether the plaintiff in the action is the employer, or the insurance carrier, or the employee. It directs that the recovery be applied to these objects in this order: (1) To pay court costs; (2) to pay attorney fees approved by the Industrial Commission; and (3) to reimburse or indemnify the employer or the insurance carrier for all compensation paid or payable by him. Any excess of the recovery then remaining is to be paid to the injured employee. A necessary implication of the statutory requirement respecting the disbursement of the recovery is that the action against the third party is prosecuted in behalf of any person entitled to claim a share in the recovery, regardless of whether he is a party to the action.
5. The contributory negligence of the injured employee constitutes a complete defense to the action against the third party, and in consequence may be pleaded and proved by the third party as such, irrespective of whether the action is prosecuted by the employer, or the insurance carrier, or the employee. Poindexter v. Johnson Motor Lines, 235 N.C. 286, 69 S.E.2d 495; Brown v. Southern R. R., 204 N.C. 668, 169 S.E. 419; 71 C.J., Workmen's Compensation Acts, section 1610.
6. It is contrary to the policy of the law for the employer, or his subrogee, *892 the insurance carrier, to profit by the wrong of the employer. Brown v. Southern R. R., supra. For this reason, where the negligence of the third party and independent negligence on the part of the employer concur and proximately cause the injury to the employee, the third party may plead and prove the independent concurring negligence of the employer as a bar, pro tanto, to the recovery of the compensation paid or payable by the employer or the insurance carrier. Poindexter v. Johnson Motor Lines, supra; Essick v. City of Lexington, 233 N.C. 600, 65 S.E.2d 220; Eledge v. Carolina Power & Light Co., 230 N.C. 584, 55 S.E.2d 179; Brown v. Southern R. R., supra. The third party may interpose this plea even though the plaintiff in the action against him is the injured employee rather than the employer or the insurance carrier. This is true because the action is prosecuted for the benefit of the employer or the insurance carrier as well as for the benefit of the employee. The term "independent negligence" denotes negligence of the employer other than that imputable to him under the doctrine of respondeat superior on account of the acts or omissions of the injured employee. Poindexter v. Johnson Motor Lines, supra.
7. The Workmen's Compensation Act is designed to secure to the employee at the hand of his employer a certain compensation against loss of earning power through injury by accident arising out of and in the course of his employment, irrespective of how such injury occurs or what brings it about. As a recompense for his acceptance of the new and comprehensive liability to pay his employee compensation on account of injury by accident, G.S. § 97-10 grants to the employer in express terms complete relief from any and all other liability to his employee "at common law, or otherwise, on account of such injury". This statutory provision abrogates all liability of the employer to the employee as a tort-feasor under the law of negligence for an injury by accident in the employment. In consequence, the third party, who is sued for damages for negligently inflicting a compensable injury upon the employee, cannot hold the employer liable for contribution under the statute embodied in G.S. § 1-240 or for indemnity under the doctrine of primary and secondary liability even where the injury is the result of the joint or concurrent negligence of the employer and the third person. Essick v. City of Lexington, 232 N.C. 200, 60 S.E.2d 106; Brown v. Southern R. R., 202 N.C. 256, 162 S.E. 613. This is necessarily so for the very simple reason that one party cannot invoke either the statutory right of contribution or the doctrine of primary and secondary liability against another party in a tort action unless both parties are liable to the plaintiff in such action as joint tort-feasors. Even apart from these sound considerations, any notion that the third party, who is sued for damages for negligently inflicting a compensable injury upon the employee, can require the employer to pay a part of such damages by way of contribution under G.S. § 1-240 or all of them by way of indemnity under the doctrine of primary and secondary liability is absolutely incompatible with the plain provision of G.S. § 97-10 relieving the employer from all liability to the employee on account of the injury except that of paying compensation to him in accordance with the provisions of the Workmen's Compensation Act. Ita lex scripta est.
When the rules created by G.S. § 97-10 are applied to the instant action, it becomes manifest that the rulings of the presiding judge on the motions to strike are sound as to Paragraphs B, C, and D and the first allegation of Paragraph M, and unsound as to Paragraphs L, N, and O, the second allegation of Paragraph M, and Prayers Nos. 1, 2, 6, 7, and 8.
The motions to strike Paragraph K and the rulings thereon are inconsequential from any viewpoint. Since the fact that the sole proximate cause of the injury in suit was the negligence of some third person may be shown by a defendant under a general denial, an allegation by a defendant to that effect ordinarily constitutes surplusage and has no place in a technically perfect answer. 65 C.J.S., *893 Negligence, § 197. By the same token, however, its inclusion in an answer is harmless to plaintiff.
When Paragraphs B, C, and D, the first allegation of Paragraph M, and Paragraphs A, F, and I are construed as connected statements with much liberality toward the Plumbing Company, they make this permissible plea: That negligence of the Plumbing Company and independent negligence on the part of the employer, the Consolidated Painters, concurred and proximately caused the injury to the plaintiff, and as a legal result the amount of compensation paid or payable to the plaintiff is not recoverable of the Plumbing Company for the benefit of the employer or the insurance carrier. Eledge v. Carolina Power & Light Co., supra.
Paragraph L, which lays hold on the doctrine of primary and secondary liability, and the second allegation of Paragraph M, which invokes the statutory right of contribution, and their corresponding prayers for relief serve no legitimate function in the case at bar, and must be expunged from the answer because of their prejudicial tendencies.
An all-sufficient ground for the expunction of these allegations and prayers is that they lay claim to relief not legally available to the Plumbing Company in this action for reasons detailed in Paragraph 7 of this opinion. There are other valid causes for their expungement. The answer ignores the significant circumstance that the doctrine of primary and secondary liability in tort actions is bottomed on active and negative negligence of joint tortfeasors. Bost v. Metcalfe, 219 N.C. 607, 14 S.E.2d 648; 65 C.J.S., Negligence, § 102. It does not contain any factual averments indicating that the negligence charged against the Plumbing Company was negative in character, or supporting the mere conclusion of Paragraph L that any negligence on the part of the Plumbing Company was secondary to that of the Consolidated Painters. Consequently the averments of the answer would be insufficient to call the doctrine of primary and secondary liability into play even if such doctrine were legally available to the Plumbing Company. Since the Guaranty Company was not an actor in the events resulting in personal injury to the plaintiff, it has committed no tort against him, and cannot be adjudged liable to the Plumbing Company as a joint tort-feasor for either contribution or indemnity. Moreover, it may be observed that while the Guaranty Company has bound itself to pay limited compensation to the employees of the Consolidated Painters under the Workmen's Compensation Act, it has not assumed any responsibility for the payment of unlimited judgments against the Consolidated Painters in common law actions for negligence.
The irrelevancy of Paragraphs N and O and Prayers Nos. 1, 2, and 6 becomes apparent on a consideration of the assignments of error directed to the refusal of the presiding judge to vacate the order making the employer and the insurance carrier parties to the action.
What has already been said renders it obvious that the legally insupportable desire of the Plumbing Company to claim contribution and indemnity from the employer and the insurance carrier furnishes no basis for the order making them parties. Moreover, the order is not needed for the protection of the Plumbing Company. It has full liberty to plead all available matters in defense and mitigation. Since the employee is prosecuting the action in strict accord with the relevant statute, the judgment in it will bar any subsequent suit against the Plumbing Company by either the employer or the insurance carrier on the same cause of action. Furthermore, the order is not to be justified on the theory that either the Plumbing Company or the court is under an obligation to bring the employer and the insurance carrier into court against their will and afford them an opportunity to claim a share in any recovery by the employee. Indeed, the Plumbing Company affirmatively asserts by its plea of independent concurring negligence on the part of the employer that neither the employer nor the insurance carrier has any such claim. Under G.S. § 97-10, any rights of the employer or the insurance *894 carrier will be enforced by the judgment, notwithstanding they are not parties to the action.
These things being true, there is no warrant in law for the order making the Consolidated Painters and the Guaranty Company parties to the action.
Ordinarily no appeal lies from an order providing for the joinder of additional parties. Burgess v. Trevathan, supra; City of Raleigh v. Edwards, 234 N.C. 528, 67 S.E.2d 669. The plaintiff, however, has brought his action under G.S. § 97-10, which clearly implies that he is to have the exclusive privilege to prosecute his action to a final conclusion without the presence of either the employer or the insurance carrier unless extraordinary circumstances require their joinder. No such circumstances exist in the instant case. We are constrained to hold that the refusal of the presiding judge to vacate the ex parte order making new parties is appealable under G. S. § 1-277 because it immediately affects a substantial right of the plaintiff, i. e., his statutory privilege to prosecute his action to a final determination without the presence of wholly unnecessary parties.
For the reasons given, the rulings on the motions to strike are modified to conform to this opinion, and the rulings on the motion to vacate the order making new parties are reversed.
On the motions to strike, modified and affirmed.
On the motion to vacate order making additional parties, reversed.
