Leishman v. BradyLeishman v. Brady
delivering the opinion of the Court:
This case is before the court on a demurrer by Milton Campbell, one of the defendants in the aсtion, to the plaintiff’s declaration; and the question is whether the facts alleged are such thаt the defendants can be responsible to the plaintiff as joint tort feasors, or whether from those facts it is apparent that their liability, if any, is necessarily for
In his brief, thе plaintiff’s attorney, designating the defendants by the letters A. and B., correctly says the precise question “is whether, or not, a joint liability in tort arises when, in an automobile collision, plaintiff’s car is negligently struck head on and ‘brought to a standstill’ by the defendant A. and ‘immediately’ thereafter, while plaintiff’s car was yet ‘in a position of danger, to-wit: in the path of the said’ defendant B’s automobile (it) is, also, struсk from the rear by the negligence of defendant B”.
It cannot be denied that when two or more persons owe to another person a common duty, and by a common neglect of that duty, such other person is injured, there is a joint tort with joint and several liability. 1 Cooley on Torts, § 86, p. 216; Matthews v. Delaware, L. & W. R. Co. et al., 56 N. J. L. 34,
But it is conceded that the weight оf authority, also, supports the broader rule that when the negligent acts of two or more persons concur in producing a single indivisible injury, such persons are jointly and severally liable, though therе was no common duty, common design, or concerted action. 1 Cooley on Torts, § 86, p. 276; 26 R. C. L. 764; 47 Harv. Law Rev. 1131; Matthews v. Delaware, L. & W. R. Co. et al., 56 N. J. L. 34,
This rule was recognized by a dictum of the court in charging the jury in Elliott v. Camper, 8 W. W. Harr. (38 Del.) 504,
In this connection, Judge Cooley says: “if the results (of the negligent acts) as well as the acts are separable, in theory at leаst, so that it can be said that the act of each (tort feasor) would have resulted in some injury, hоwever difficult it may be as a practical matter to establish the exact proportiоns of injury caused thereby, each can be held liable only for so much of the injury as was causеd by his act.” Cooley on Torts, Sect. 86.
From the allegations of the declaration, it is apparent that the negligent acts of the defendants were not only separate and distinct, but that they did not cause a single injury to the plaintiff.
Applying the principles above stated, it is, therefore, clear that the defendants cannot be joined in this action. The same conclusion was reached by the court in Young v. Dille, 127 Wash. 398, 220 P. 782, and in Jackson, Adm’x v. Geiger, 103 N. J. L. 490,
In Young v. Dille, supra, the court said [page 784]:
“To bе joint tort-feasors the parties must either act together in committing the wrong, or their acts, if indeрendent of each other, must unite in causing a single injury. Neither of these conditions were here рresent. The allegations and the proof are that Dille by*567 one act of negligence сaused the appellant certain injuries, and, that Harris, after the commission of this act of negligence, by an independent act of negligence caused him [plaintiff] further and additional injuries. The acts have no relation to each other except nearness in time. But time is not a determinative consideration. If the acts are not joint in fact, or if the acts do not unite in causing a single injury, they are as widely separated in law by the lapse of moments as they would be were they separated by the lapse of hours or days.”
On similar facts a different conclusion seems to have been reached in Floun v. Birger, (Mo. App.) 296 S. W. 203, but I am unable to agree with the reasoning of the court in that case.
It is true that in 1 Thompson on Negligence, Section 75, the author, also, says: “If the concurrent or successive negligence of two рersons, combined together, results in an injury to a third person, he may recover damagés of eithеr, or both, and neither can interpose the defense that the prior or concurrent negligence of the other contributed to the injury”. But the plaintiff draws inferences from that statement that аre not justified under the facts of this case. Under some circumstances, successive, as well аs concurrent acts, may perhaps make persons liable as. joint tort feasors, but they must сause a single injury. 47 Harv. Law Rev. 1131; 48 Harv. Law Rev. 860; see, also, Barnes v. Masterson, 38 App. Div. 612, 56 N. Y. S. 939; Gardner v. Friederich et al., 25 App. Div. 521, 49 N. Y. S. 1077, and cases supra.
Perhaps the same rule may apply in some cases where prior injuries аre merely enhanced by subsequent acts (48 Harv. L. Rev. 860, commenting on Aikman v. Mills Co., (Ont. Sup. Ct. 1934) 4 D. L. R. 264), but it is not necessary for me to consider that question, as no such facts appear in the declaration.
Stucker v. American Stores Corporation, 5 W. W. Harr. (35 Del.) 594,
For the reasons above given, the demurrer is sustained.