Shaw v. Barnard

• Decision Date: 07 January 1949
• Docket Number: 667
• Parties: SHAW v. BARNARD et al.
• Court: North Carolina Supreme Court

51 S.E.2d 295

229 N.C. 713

SHAW v. BARNARD et al.

No. 667

Supreme Court of North Carolina

January 7, 1949

Civil action under the wrongful death statute heard on demurrer to the complaint.

The plaintiff alleges, as against defendants Transit Line and J R. Jones, in substance that on January 2, 1947, at about 7:00 p. m., his intestate, Stiles, became a passenger on a bus of defendant Transit Line; that Jones, the bus driver, ejected him at the corner of Summit Avenue and Sixteenth Street on the sidewalk for the reason he, the driver, insisted the deceased was drunk and disorderly; that, at the time, the driver knew that deceased was not in condition to take care of himself and also knew that he would have to cross to the west side of Summit Avenue, one of the main thoroughfares of Greensboro, bearing heavy traffic at all times; and that he negligently failed to aid deceased in crossing said dangerous highway.

As against defendants Greyhound Corporation and Hudson, he alleges that soon after being ejected from the Transit Line bus, deceased attempted to cross Summit Avenue at Seventeenth Street from east to west; that at the same time a Greyhound Corporation bus was being operated southerly along Summit Avenue by Hudson, at a rapid and unlawful rate of speed; that the driver saw or should have seen that deceased was confused, incapacitated, and unable to care for himself; that the driver, going at an excessive rate of speed, attempted to pass around deceased at the intersection of Summit Avenue and Seventeenth Street, without stopping or paying attention to the safety of pedestrians; that the bus struck him and continued on 52 feet before stopping; and that the bus struck deceased with such force that it inflicted serious injury resulting in death.

The negligence of each defendant is particularized, and it is alleged that the death of plaintiff's intestate was proximately caused by the alleged negligent acts of said defendants.

The defendants appeared and demurred to the complaint for that (1) there is no allegation that the action was instituted within one year after the death of plaintiff's intestate, (2) for misjoinder of parties and causes of action, and (3) for that it affirmatively appears on the face of the complaint that the liability of the defendants, if any, is several and not joint, each cause of action being separate and distinct and no joint tort or other cause of action common to all defendants is alleged. The grounds for the demurrer in each instance are fully stated.

The court below sustained the demurrer for that there is a misjoinder of parties and causes of action and dismissed the action at the cost of plaintiff. Plaintiff excepted and appealed.

Frazier & Frazier and Adam Younce, all of Greensboro, for plaintiff-appellant.

Welch Jordan, of Greensboro, for defendant-appellees.

BARNHILL Justice

A single action in tort for negligence may be maintained against two or more defendants only when the plaintiff relies on the doctrine of respondeat superior or the defendants are joint tort-feasors.

'An action cannot be maintained against two or more defendants for distinct torts which were committed by the different defendants independently of and not in connection with each other, although the consequences of the tort, which was committed by one defendant, united with the consequences of the tort which was committed by the other. In such case the one defendant cannot be made liable for the consequences of the tort of the other. Stephens v. Schadler, 182 Ky. 833, 207 S.W. 704. ' Bost v. Metcalfe, 219 N.C. 607, 14 S.E.2d 648, 652.

To constitute two or more persons joint tort-feasors the negligent or wrongful act of the one must be so united in time and circumstance with the negligent or tortious act of the other that the two acts in fact constitute but one transaction. While neither concert of action nor unity of purpose is required, there must be concurrence in point of time and place. The parties must either act together in committing the wrong, or their acts, if independent of each other, must unite in causing a single injury. There must be a common intent to do that which results in injury, or their separate acts of negligence must concur in producing a single and indivisible injury. Bost v. Metcalfe, supra, and cases cited.

'The well established and familiar rule that a plaintiff may consistently and properly join as defendants in one complaint several joint tort-feasors applies where different persons, by related and concurring acts, have united in producing a single or common result upon which the action is based. 9 A.L.R. 942; Anno. 35 A.L.R. 410. ' Bost v. Metcalfe, supra; Smith v. McDowell Furniture Co., 220 N.C. 155, 16 S.E.2d 685.

Here it appears on the face of the complaint from the facts alleged therein that the defendants Transit Line and Jones, on the one hand, and the Greyhound Corporation and Hudson, on the other, are not joint tort-feasors. The happening of each event portrayed in the complaint is wholly independent of the other. The cause of action, if any, against Jones and the Transit Line is grounded upon the breach of duty the law placed on them by reason of the relationship created by the contract of conveyance, while the cause of action, if any, against defendants Greyhound Corporation and Hudson arises out of Hudson's alleged negligent operation of a bus upon the public streets of Greensboro.

While the plaintiff does not make any allegation as to the length of time which expired between the two events, it does appear on the face of the complaint that the deceased, after being discharged from the Transit Line bus, went at least one block before he attempted to cross Summit Avenue, where he was struck by the bus...