Pendleton v. Columbia Ry., Gas & Elec. Co.

• Decision Date: 11 January 1926
• Docket Number: 11894.
• Citation: 131 S.E. 265,133 S.C. 326
• Parties: PENDLETON v. COLUMBIA RY., GAS & ELECTRIC CO. ET AL.
• Court: South Carolina Supreme Court

131 S.E. 265

133 S.C. 326

PENDLETON v. COLUMBIA RY., GAS & ELECTRIC CO. ET AL.

No. 11894.

Supreme Court of South Carolina

January 11, 1926

Appeal from Common Pleas Circuit Court, of Richland County; R. W Memminger, Judge.

Action by R. L. Pendleton against the Columbia Railway, Gas & Electric Company and another. From an order refusing to require plaintiff to make complaint more definite and certain, and to elect what remedy he would rely, defendants appeal. Affirmed.

See also, 128 S.E. 711.

R. B Herbert, of Columbia, for appellants.

Frank G. Tompkins and Heyward Brockinton, both of Columbia, for respondent.

MARION J.

This plaintiff brought his action in tort against the Columbia Railway, etc., Company, hereinafter referred to as the Railway Company, and Leon E. Dicks, to recover damages for an alleged personal injury.

The defendants made a motion in the circuit court to require the plaintiff: (1) To make his complaint more definite and certain, etc.; and (2) "to require the plaintiff to elect as to whether or not he relies on separate and several acts of negligence on the part of the codefendants, or whether he elects to rely on joint negligence on the part of said codefendants." From an order refusing that motion, the defendants appealed to this court. The plaintiff moved in this court to dismiss the appeal. That motion, in so far as the appeal involved "the matter referred to under subdivision (2) above," was refused. See Pendleton v. Columbia Railway, etc., Co. et al. (S. C.) 128 S.E. 711, wherein it was held that "the order refusing to require the plaintiff to elect involved the merits and was appealable before final judgment."

The question now presented for determination on its merits is whether the circuit judge committed error in refusing to require the plaintiff to elect as to whether he relies on "separate and several acts of negligence on the part of the codefendants" or on their "joint negligence." The complaint alleges, in substance: (1) That the plaintiff was discharged by the defendant Railway Company from one of its street cars in the middle of a block, and was thereby placed in a much traveled street, where he was struck by an automobile driven by the defendant Dicks and thereby seriously injured in his person; (2) that his said injuries were caused by the negligence and willfulness of the defendant Railway Company, in various particulars, which are separately set out; (3) that his said injuries were caused by the negligence and willfulness of the defendant Dicks, in various particulars, which are separately set out; (4) that the negligent and willful acts of the defendant Railway Company "were the proximate causes of the injury as aforesaid," and combined and co-operated with the negligence and willfulness of the defendant Dicks to bring about "this injury"; and (5) that the "said joint and concurrent" negligence and willfulness of the defendants were the proximate cause of the injury to the plaintiff, and that by reason of the negligence and willfulness of the Railway Company, and the "joint and concurrent" negligence and willfulness of the two defendants, the plaintiff had sustained damages in the sums of $25,000 actual and $25,000 punitive damages. The prayer of the complaint is for "judgment against the said defendants" in the sums above stated.

The ruling made and the views expressed by this court in the case of McKenzie v. Railway Co., 113 S.C. 453, 102 S.E. 514, upon which defendants' motion to require an election was evidently predicated, are thus succintly and accurately stated by Mr. Justice Cothran in disposing of plaintiff's motion to dismiss this appeal (Pendleton v. Columbia Ry., etc., et al., supra):

"That case resulted from a collision at a railroad crossing between a train of the corporation and an automobile owned and driven by the individual defendants, in which the plaintiff was riding as a passenger. The complaint contained three causes of action: (1) Against the corporation defendant for negligence in operating the train; (2) against the individual defendants for negligence in operating the automobile; (3) against both defendants, corporation and individual, as joint tort-feasors. The court said:

'Of course, a recovery under the second cause of action against Holler and Hairley (the individual defendants) bars a recovery under the third cause of action (against both as joint tort-feasors), for the reason that joint tort-feasors cannot be sued both separately and jointly. The two actions are inconsistent; and if the defendant had made a motion to require the plaintiff to elect whether he would rely upon the first and second causes of action (which were against the defendants separately), or upon the third (in which they were sued jointly), the motion would have been granted.' "

While the foregoing observations to the effect that "tort-feasors cannot be sued both separately and jointly," and that "the two actions are inconsistent," were made by way of argument in the McKenzie Case, we think they are soundly grounded in principle. The general rule is thus well stated by Pomeroy in his Remedies and Remedial Rights (2d Ed.) § 281:

" The general doctrine is that the liability arising from torts committed by two or more is joint and several in its nature, or, to be accurate, it resembles a joint and several liability. * * * In pursuance of the general rule, as given above, if the tort is of such a nature that it may be committed by two or more persons in combination, the injured party may bring an action against all the wrongdoers, against any number of them, or against one of them, or may bring a separate action against each one, or against any part of the whole. The liability is much broader, therefore, than one which is simply joint and several. If, in contemplation of law, the single tort cannot be committed by two or more together, and can only be a different tort by each, a separate action must be brought against each wrongdoer."

That a single injury, which is the proximate result of the separate and independent acts of negligence of two or more parties subjects the tort-feasors, even in the absence of community of design or concert of action, to a liability which is both joint and several, is a proposition recognized and approved in this state and supported by the great weight of authority elsewhere. Matthews v. Railway, 67 S.C. 499, 514, 46 S.E. 335, 65 L. R. A. 286; Steele v. Railroad Co., 95 S.C. 124, 126, 78 S.E. 705; Cooley on Torts (3d Ed.) p. 246; 38 Cyc. 488. Since the liability of such tort-feasors is both joint and several, it is well settled that the law gives to the injured party the option of suing two or more of the parties liable jointly; that is, as defendants in one action, or...