Lucas v. City of Juneau, 7174-A.

• Decision Date: 01 February 1955
• Docket Number: No. 7174-A.,7174-A.
• Parties: Lauren M. LUCAS, Plaintiff, v. CITY OF JUNEAU, a municipal corporation; and Sears, Roebuck and Company, a foreign corporation, Defendants.
• Court: U.S. District Court — District of Alaska

127 F. Supp. 730

Lauren M. LUCAS, Plaintiff, v. CITY OF JUNEAU, a municipal corporation; and Sears, Roebuck and Company, a foreign corporation, Defendants.

No. 7174-A.

District Court, Alaska First Division, Anchorage.

February 1, 1955.

William L. Paul, Jr., Seattle, Wash., and John S. Mansuy, Jr., Juneau, Alaska, for plaintiff.

H. D. Stabler, Juneau, Alaska, for defendant City of Juneau.

R. E. Robertson (or Robertson, Monagle & Eastaugh), Juneau, Alaska, for defendant Sears, Roebuck & Co.

FOLTA, District Judge.

The plaintiff seeks damages in the amount of $90,000 for personal injuries sustained as the result of the alleged negligence of the defendants. It appears that while in the order office of Sears, Roebuck & Co., at Juneau, as an invitee, he stepped on a round pencil on the floor, which, rolling under his weight, caused him to fall and injure his back. After confinement in the local hospital for some time it was decided that he should enter the Veterans' Hospital at Seattle for further treatment. Pursuant to this decision he commenced his journey to the airport in the defendant city's ambulance, 18 days after the injury. En route the driver was seized with an epileptic fit, according to plaintiff's brief, as a result of which the ambulance went out of control and off the highway, the plaintiff was thrown to the floor of the ambulance, and his original injury aggravated.

Alleging that the extent of the injury caused by each of these acts of alleged negligence is indeterminable, plaintiff has joined the defendants in this action. His claim is based on the allegation that Sears, Roebuck & Co., hereinafter called Sears, was negligent in allowing the pencil to remain on the floor, and that the city was negligent in employing an epileptic driver. The defendants have countered with motions to dismiss for misjoinder.

Two interrelated questions are presented — 1, whether Sears may be held liable for both injuries, and, 2, whether the parties may be joined under Rule 20(a), Fed.Rules Civ.Proc. 28 U.S.C.A.

The plaintiff contends that the defendants are joint tort-feasors and hence may be joined under either of two well-established rules of law. Under one, both defendants would be jointly and severally liable for the full amount of damages and, under the other, only Sears would be liable for the full amount and the city to the extent of its liability only. The first rule is set forth in 38 Am.Jur. 946, Sec. 257, and the second, in 15 Am.Jur. 495, Sec. 85.

Considering the question of joinder with respect to these rules of substantive law, it would appear that there can be no doubt that if the first rule applies, the defendants may be treated as true joint tort-feasors and may be joined in the same action, whereas if the second rule applies, then Sears would be liable for the full amount and the city, as well as Sears, would be liable for the aggravation. Restatement Torts 446-448, Sec. 879, ill. 3. Assuming that Rule 20 is applicable, the city and Sears would be severally liable for the aggravation, while the questions of fact which would be common to the two causes of action would be those arising out of the wreck of the ambulance. The question of joinder, therefore, turns on the applicability of one or the other of these rules. Examination of the cases cited to the statement of the first rule in 38 Am.Jur. 946-948, Sec. 257, discloses that its applicability is limited to situations where consecutive or concurrent acts of negligence unite to produce a single injury, rather than to those in which there are two separate injuries. Gulf, C. & S. F. R. Co. v. Cities Service Co., D. C., 273 F. 946, 950; Phillips Petroleum Co. v. Hardee, 5 Cir., 189 F.2d 205; cf. Gibson v. Bodley, 156 Kan. 338, 133 P.2d 112.

In the instant case the negligent acts of the defendants did not set in motion forces which united to produce a single injury but did produce two successive and separate injuries to the...