Montgomery v. Service Oil Co.

• Decision Date: 11 November 1947
• Docket Number: 16009.
• Citation: Montgomery v. Service Oil Co., 45 S.E.2d 31, 211 S.C. 324 (S.C. 1947)
• Parties: MONTGOMERY v. SERVICE OIL CO., Inc., et al.
• Court: South Carolina Supreme Court

45 S.E.2d 31

211 S.C. 324

MONTGOMERY v. SERVICE OIL CO., Inc., et al.

No. 16009.

Supreme Court of South Carolina

November 11, 1947

Osborne, Butler & Moore, of Spartanburg, for appellant.

Perrin, Tinsley & Perrin, of Spartanburg, for respondent.

STUKES Justice.

The complaint in this action for damages resulting from a collision between plaintiff's passenger automobile and a truck alleges that the defendant, Service Oil Company, Inc. owned the truck which it leased to its codefendant, War Emergency Cooperative Association, in 1945 and thereby gave control of it as if it were owned by the lessee. It is then alleged 'that the tractor (truck) of the defendants herein, driven by their agent and servant,' was operated negligently, carelessly, wilfully and recklessly, in specified particulars, at the time of the collision. Other allegations in the complaint are to the same effect, to wit that the driver of the truck at the time of the accident was the agent and servant of the defendants, and that the alleged tortious acts were by the defendants through their alleged agent and servant, the driver of the truck. The complaint contains other allegations usual in the statement of such a cause of action and the prayer is for judgment against both defendants.

War Emergency Cooperative Association demurred upon the ground that two causes of action are improperly joined and that there is no statement of a cause of action upon joint liability, for one of the defendants is alleged to have been the owner of the offending vehicle and the other the lessee. The same defendant moved for an order requiring the separate statement of the alleged several causes of action and that the plaintiff be required to elect as to which defendant he will proceed against. The demurrer was overruled and the motion refused by formal orders of the Circuit Court. From such War Emergency Cooperative Association presses this appeal.

Appellant states the issues raised by the exceptions as follows: In an action for damages arising out of collision between automobile and truck-tractor against both owner and lessee of truck-tractor is not action against both owner and lessee inconsistent and incompatible so that action can proceed only against one or the other, but not both? If action can proceed against both in the same complaint should not the causes of action against them be separately stated?

It is apparent that appellant has confused the statement of two causes of action with the statement of one cause of action against jointly liable defe...