Shaw v. . BarnardShaw v. . Barnard
- Reporters:
- , ,
- Before:
- Barnhill
A singlе action in tort for negligence may be maintained against two or more defendants only when the plaintiff reliеs on the doctrine of respondeat superior or the defendants are joint tort-feasors.
“An action cannot be maintained against two or more defendants for distinct torts which were committed by the different defendants independently of and not in connection with each other, although the consequences of the tort, which was committed by one defendant, united with the consequences of the tоrt which was committed by the other. In such case the one defendant cannot be made liable for the cоnsequences of the tort of the other. Stephens v. Schadler, 182 Ky. 833, 207 S. W. 704;” Bost v. Metcalfe, 219 N. C. 607, 14 S. E. (2) 648.
To constitute two or more persons joint tort-feasors the negligеnt or wrongful act of the one must be so united in time and circumstance with the negligent or tortious act of the othеr that the two acts in fact constitute but one transaction. While neither concert of action nor unity of рurpose is required, there must be concurrence in point of time and place. The parties must either аct together in committing the wrong, or their acts, if independent of each other, must unite in causing a single injury. *716 There must be a common intent to do that which results in injury, or their separate acts of negligence must concur in producing a single and indivisible injury. Bost v. Metcalfe, supra, and cases cited.
“The well established and familiar rule that a plaintiff may consistently and properly join as defendants in one complaint several joint tort-feasors applies where different persons, by related аnd concurring acts, have united in producing a single or common result upon which the action is based. 9 A. L. R. 942; Anno. 35 A. L. R. 410;” Bost v. Metcalfe, supra; Smith v. Furniture Co., 220 N. C. 155, 16 S. E. (2) 685.
Herе it appears on the face of the complaint from the facts alleged therein that the defendаnts Transit Line and Jones, on the one hand, and the Greyhound Corporation and Hudson, on the other, are not joint tort-feasors. The happening of each event portrayed in the complaint is wholly independent of the other. The cause of action, if any, against Jones and the Transit Line is grounded upon the breach of duty the lаw placed on them by reason of the relationship created by the contract of conveyanсe, while the cause of action, if any, against defendants Greyhound Corporation and Hudson arises out of Hudsоn’s alleged negligent operation of a bus upon the public streets of Greensboro.
While the plaintiff does not make any allegation as to the length of time which expired between the two events, it does apрear on the face of the complaint that the deceased, after being discharged from the Transit Line bus, went at least one block before he attempted to cross Summit Avenue, where he was struck by the bus of defendant Greyhound Corporation. The two events alleged were entirely separate and distinct in point of timе and circumstance.
Thus it appears that related and concurring acts of negligence such as would сreate joint liability and give rise to one and only one cause of action against all the defendants аre not alleged.
It follows that if a maintainable cause of action is alleged against each grouр of defendants the judgment must be affirmed, for a misjoinder of parties and causes of action constitutes a fatal defect. A severance is not permissible. Bank v. Angelo, 193 N. C. 576, 137 S. E. 705; Southern Mills, Inc., v. Yarn Co., 223 N. C. 479, 27 S. E. (2) 289; Moore County v. Burns, 224 N. C. 700, 32 S. E. (2) 225.
But no cause of action is alleged against Jones and the Transit Line. As to them the plaintiff has alleged himself out of court.
Even if the deceased was wrongfully ejected from the Transit Line’s bus, he was afforded a safe landing. The driver of the bus was under no duty to pilot him to his home. His injuries did not flow from that wrongful act but arose out of an entirely different and independent occurrence.
On the allegations mаde, the action of Jones in wrongfully ejecting the deceased from the bus was not a proximate cause of the injury and death. *717 His negligence bad spent itself. It was no longer operative or active. It was broken by а new and independent, intervening and insulating, act of negligence which became and was the superseding prоximate cause. Insurance Co. v. Stadiem, 223 N. C. 49, 25 S. E. (2) 202; Ballinger v. Thomas, 195 N. C. 517, 142 S. E. 761; Haney v. Lincolnton, 207 N. C. 282, 176 S. E. 573; Baker v. R. R., 205 N. C. 329, 171 S. E. 342; Beach v. Patton, 208 N. C. 134, 179 S. E. 446; Butner v. Spease, 217 N. C. 82, 6 S. E. (2) 808. It cannot be said that his act and the conduct of Hudson constitute one continuous sucсession of events so linked together as to make a natural whole. Henderson v. Powell, 221 N. C. 239, 19 S. E. (2) 876; Butner v. Spease, supra; Ballinger v. Thomas, supra; R. R. v. Kellogg, 94 U. S. 469.
Proximate cause is a prerequisite of liability for negligence and foreseeability is an еssential element of proximate cause. Hence, in the final analysis, reasonable foreseeаbility on the part of the original actor of the subsequent intervening act and the resultant injury is the test. Henderson v. Powеll, supra; Butner v. Spease, supra; Gold v. Kiker, 216 N. C. 511, 5 S. E. (2) 548; Murray v. R. R., 218 N. C. 392, 11 S. E. (2) 326; Reeves v. Staley, 220 N. C. 573, 18 S. E. (2) 239; Insurance Co. v. Stadiem, supra; Rattley v. Powell, 223 N. C. 134; Beach v. Patton, supra; Montgomery v. Blades, 222 N. C. 463, 23 S. E. (2) 844.
“The test ... is whether the intervening act and the resultant injury is one that the authоr of the primary negligence could have reasonably foreseen and expected.” Harton v. Telephone Co., 141 N. C. 455.
The law does not require omniscience. Wood v. Telephone Co., 228 N. C. 605. It was not the duty оf Jones to anticipate negligence on the part of others. To say that he was under obligation to anticipate the occurrence which caused the death of plaintiff’s intestate goes beyond the field of reasonable foresight. Ilence the facts alleged exculpate him and his employer and relieve them of any liability for the injury and death of deceased. As to them no cause of action is stated. Ballinger v. Thomas, supra. On this record they are unnecessary parties.
The cause is remanded to the end that an order may be entered dismissing the action as to the defendants Jones and Transit Line and reinstating it on the civil issue docket for trial as against the defendants Hudson and Greyhound Corporation.
Error and remanded.