99 Tenn. 618 | Tenn. | 1897
Plaintiffs sued defendants for damages for personal injuries to Nannie Snyder, wife of the plaintiff, John Snyder. There was a verdict and judgment for defendants, and' plaintiffs have appealed and assigned errors.
The facts necessary to be stated are that defendants are the keepers of hucksters’ stalls at the markethouse in Knoxville. They placed two push or hand carts on a narrow pavement in front of their stands so that they protruded over the curbing, and while the plaintiff, Nannie Snyder, was standing on the pavement or sitting on a box, an ice wagon belonging to J. K. Griffin struck the push carts, and drove them violently against her, injuring and bruising her. The declaration set out the cause of action in two counts, both substantially as stated. The defendaiits filed two pleas: First, not guilty; and, second, accord and satisfaction, in that the plaintiffs had sued J. K. Griffin previously to bringing this action, and received from him $110, in full payment and satisfaction of the injuries sustained, and that the cause of action in each case was the same.
Plaintiffs demurred to the second plea on several grounds: (1) that defendants did not, by their plea, admit that they committed the wrong, and hence the
The first error assigned is that the plea demurred to is 'a plea in confession and avoidance, and yet it fails to confess the wrong, so that its effect may be avoided. The only words of confession in the plea are that, ‘' if plaintiffs have any cause of action it is against them and said Griffin jointly,” etc. In 1 Chitty on Pleading (16th Ed.), 678, it is said: “If a defendant, in his answer, seeks to avoid a cause of action, he need not confess the cause of action. He has a right to say I deny your alleged cause of action, but if you^ succeed in proving it, still I am not liable, because,” etc. In Caruthers’ History of a Lawsuit, 191, the author, in speaking of pleas in confession and avoidance, says, “Such a plea may not, and generally does not, expressly confess what the declaration alleges, but there is always an implied confession.” It is a rule of practice in Courts of Law that whatever is not denied is confessed.
The next question presented is, Do the facts alleged make these defendants tort feasors with Griffin, the owner of the ice wagon, and does a settlement with him, as one joint tort feasor, release the other wrongdoers? Cooley on Torts (2d Ed.), 684, states the law to be that the negligence of third persons, concurring with that of defendant to produce an injury, is no defense, but only renders the third party liable as a joint tort feasor. Shearman & Redfind on Negligence, Sec. 122, states the law to be, “all persons who co-operate in an act directly causing injury are jointly liable for its consequences if they acted in concert, or unite in causing an injury, even though acting independently of each other.” See, to the same effect, Hilliard on Remedies for Torts, 170; Colegrove v. Railroad Co., 20 N. Y., 492; Railroad Co. v. Shacklett, 105 Ill., 364.
If defendants can be held liable at all, under the facts in this case, it can only be on ■ the theory that
We are of opinion there is no error in the judgment of the Court below, and it is affirmed with costs.