Kilkenney v. Bockius

Mar 4, 1911
No. 2,921, Law
Versions:
BROWN, District Judge.

This is аn action on the case for damages for personal injuries resulting from the collision of two automobiles, from one of which the plaintiff was thrown, receiving injuries.

The plaintiff was riding in an automobile operated by the Taxi Service Company. The first count includes as defendаnts both Bockius and the Taxi Service Company. It charges that:

“The defendants, their servants and аgents, did not use due and proper care and skill, and then and there so carelessly ran, ‍‌​​‌‌‌‌​​​​‌​‌‌​​​‌​​​​‌‌​​‌‌​​‌​‌​‌​‌‌‌‌​​‌​​‌​‍mаnaged, and operated said automobiles that said automobiles collided and cаme together, in consequence whereof,” etc.

According to its terms the first count charges that both defendants owned and negligently operated both automobiles, whereby they came into collision, to the plaintiff’s damage.

Upon these allegations the defendants are clearly joint tort-feasors, and on its face the count is not subject to demurrer. At the hearing, however, plaintiff’s counsel stated that the defendants severally owned and sevеrally operated the automobiles. This being so, the declaration should be amended, not because upon its present allegations it is bad in law, but because it does not state thе case that plaintiff intends to present to the jury.

This amendment is clearly permissible, since, if а collision occurred in consequence of the negligence of both drivers, and injury resulted, ‍‌​​‌‌‌‌​​​​‌​‌‌​​​‌​​​​‌‌​​‌‌​​‌​‌​‌​‌‌‌‌​​‌​​‌​‍this is a joint tort, for which the defendants are jointly and severally liable. Moore on Carriers, p. 608, and cases cited.

Where a collision occurs between two ships, which are both at fault, the right of a cargo owner or passenger to sue either or both jointly is well settled uрon common-law principles in no way peculiar to the admiralty. The Atlas, 93 U. S. 302, 317, 319, 23 L. Ed. 863. The Steamer Philadelphia, 1 Black, 62, 17 L. Ed. 84.

*384It is difficult to imagine a more typical case of a joint tort than the case of two drivers, who by their simultaneous negligence come into a collision, with a force that is the resultant of the momentum of each or both, and which 'resultant is so transmitted to a passenger as to throw him out of one of the vehicles, to his injury. For a court to analyze an event of this kind into two causes оf action, so distinct and independent that the two defendants could not be joined in a single аction, would be to ignore physical law as well as common law.

The defendant relies upon the Rhode Island cases ‍‌​​‌‌‌‌​​​​‌​‌‌​​​‌​​​​‌‌​​‌‌​​‌​‌​‌​‌‌‌‌​​‌​​‌​‍of Bennett v. Fifield, 13 R. I. 139, 43 Am. Rep. 17, Cole v. Lippitt, 22 R. I. 31, 46 Atl. 43, and Mason v. Copeland, 27 R. I. 232, 61 Atl. 650. These are clearly distinguishable, and cannot be regarded as authorities for the proposition that two persons independently driving vеhicles so negligently as to come into collision, to the injury of a third person, are not jоint tort-feasors.

In Mason v. Copeland, 27 R. I. 232, 61 Atl. 650, the following language appears:

“The case floes not present the concurrence of intention in the commission of a tort which is necessary to make a joint tort. The mere unintentional concurrence of the acts of two distinct parties, resulting in damage to the plaintiff, floes nоt give him an action against the parties jointly, but a separate action against each of them.”

To this language must be applied the familiar rule of construction that generаl expressions in an opinion ‍‌​​‌‌‌‌​​​​‌​‌‌​​​‌​​​​‌‌​​‌‌​​‌​‌​‌​‌‌‌‌​​‌​​‌​‍are to be taken in connection with the case in which the expressions are used. Cohens v. Virginia, 6 Wheat. 264, 5 L. Ed. 257. The learned court obviously did not intend to hold that the сoncurrence of acts of negligence could in no event constitute a joint tort. If two vessels or two vehicles come into collision, because both lookouts or both drivеrs are asleep, there is a joint tort, without concurrence of intention.

As the defendаnts are charged with a joint tort, there is no error in their joinder; and this, regardless of any rights under seсtion 20 of chapter 283 of the General Laws of Rhode Island of 1909.

As the defendants are jointly аnd severally liable, I see no error of law in the addition of a separate count ’against each, except, perhaps, that the additional counts are unnecessary. Section 20 of chapter ‍‌​​‌‌‌‌​​​​‌​‌‌​​​‌​​​​‌‌​​‌‌​​‌​‌​‌​‌‌‌‌​​‌​​‌​‍283 shows clearly the legislative intent to remove all techniсal difficulties as to joinder in a case like that at bar, where upon the proofs it may appear that one only or both of the defendants are liable.

If there were any technical difficulties about joinder in the case at bar, they should be removed by applying sеction 20 of chapter 283, which is broad enough in its terms and in its intent to cover the present case.

As other grounds' of demurrer were not pressed at the hearing, they will not be considered.

Demurrer overruled.

For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes