Mayberry v. Northern Pacific Railway Company
| Decision Date | 25 January 1907 |
| Docket Number | 14,949 - (129) |
| Citation | 110 N.W. 356,100 Minn. 79 |
| Parties | CHRISTINA MAYBERRY v. NORTHERN PACIFIC RAILWAY COMPANY and Others |
| Court | Minnesota Supreme Court |
Separate appeals by defendant Northern Pacific Railway Company, and defendants David Wilson and Joseph Julien, from an order of the district court for Hennepin county Dickinson, J., overruling their separate demurrers to the complaint. Affirmed.
Master and Servant.
Joint action against a master and his servant may be maintained when based upon the negligent or other act of the servant for which the master is liable.
Action -- Joinder of Causes.
When several acts of negligence concur in giving rise to a single right of action, they may be united in the same complaint, under section 4154, R.L. 1905, which permits several causes of action to be joined in the same pleading, when they arise out of the same transaction or transactions.
Right of Contribution.
The rule that the right of contribution does not exist as between joint tort-feasors has no application to torts which are the result of mere negligence.
C. W. Bunn and L. T. Chamberlain, for appellant Northern Pacific Railway Company.
C. D. & R. D. O'Brien, for appellants Wilson and Julien.
F. D. Larrabee, for respondent.
This action was brought to recover damages for the death of plaintiff's intestate, alleged to have been caused by the negligence of defendants. The railroad company and individual defendants separately demurred to the complaint, assigning as ground thereof that two causes of action were improperly united therein. The demurrers were overruled, and separate appeals taken to this court. The only question presented is whether the demurrers were well taken.
The complaint alleges substantially the following facts: Plaintiff's intestate, at the time of the accident causing his death, was in the employ of defendant railroad company as a switchman in its yards at Minneapolis. Defendants Wilson and Julien were also in the employ of defendant company in the same yards and were fellow servants of deceased. Wilson was employed in the capacity of engineer, and engaged in operating a switch engine, and Julien was a switchman. While deceased was in the due discharge of his duties, and without fault on his part, he received certain injuries to his person, resulting in his death, caused and occasioned, as alleged in the complaint, by the negligence of defendants in two respects, viz.: (1) That defendant company was guilty of negligence, contributing to his death, in placing, or causing to be placed, a car upon a side track in such close proximity to an adjoining track near a switch that deceased came in contact therewith while riding upon another car on an adjoining track, knocking him therefrom and upon the track, upon which a car was then approaching; and (2) that the other defendants, fellow servants of deceased, were guilty of negligence, contributing to his death, in failing to observe certain signals given them by deceased to go forward, instead of doing which they caused the engine and cars then under their control to back over and upon the body of deceased, immediately after he was knocked from the car alleged to have been negligently placed upon the adjoining track by the company.
There are no allegations connecting Wilson and Julien with the act charged against the company in placing the car so close to the adjoining track as to leave insufficient space for the passage of other cars being switched in the yards. Negligence in this respect is charged against the company alone. Nor is the company charged with misconduct or failure of duty in connection with the alleged negligence of Wilson and Julien; recovery being sought against it for their negligence under the fellow-servant statute.
It is contended by defendants that there is an improper joinder of causes of action, for the reasons (1) that the negligence of the company in rendering the place in which deceased was required to perform his work unsafe, by placing the car which struck him in an improper position, has no connection with the negligence of Wilson and Julien in causing another car to run upon and kill him, and (2) that the cause of action against Wilson and Julien arises at common law by reason of their negligence, and is wholly disconnected with the statutory liability of the company -- in other words, that the liability of each defendant is separate and independent, giving rise to separate actions for damages, and consequently cannot be united in the same complaint.
The principal question presented, as we view the case, is whether the statutory liability of the railroad company and the common-law liability of the fellow servants of deceased may be united in the same complaint. The alleged negligence of the company in placing the car upon the side track is but an incidental fact, inseparably connected with and concurring in the accident, and in no proper view an independent cause of action. Louisville v. Mothershed, 97 Ala. 261, 12 So. 714. So we turn our attention to the question whether the statutory liability of the company may be joined in the same action with the common-law liability of the fellow servants, and a joint recovery be had against both. In the case at bar, this question narrows down, it would seem, to whether there is a misjoinder of parties defendant, rather than an improper joinder of causes of action. Plaintiff has but one cause of action, viz., the wrongful acts of defendants in causing the death of her intestate; and this right of action exists by virtue of the statutes which authorize suit in such cases by the administrator of the estate of the deceased person. It is a single right of action, and is not rendered double by reason of the fact that it has its origin in the separate negligent acts of defendants. So the real question is whether, under the circumstances disclosed by the allegations of the complaint, defendants may be proceeded against jointly.
We have no statute in this state fixing any rule upon the subject of the joinder of parties defendant in actions in tort. Section 4062, R.L. 1905, refers only to actions upon contract. We must, therefore, refer to the rules of the common law controlling the question in determining whether the action at bar was properly brought against all the defendants. An examination of the books discloses an irreconcilable conflict in the decisions upon the question. It is held by some courts that separate persons, acting independently, but causing together a single injury, are joint tort-feasors, and may be sued either jointly or severally at the election of the plaintiff, and that it is not essential that the defendants in such case shall have acted in concert. Matthews v Delaware, 56 N.J.L. 34, 27 A. 919, 22 L.R.A. 261; 15 Enc. Pl. & Pr. 559. Ot...
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