Opinion
12619
March 22, 1929.
Before DeVORE, J., Greenville, April, 1927. Affirmed.
Action by D.R. Martin against Fred Hines and others. Judgment for plaintiff against the defendant named, and such defendant appeals.
The complaint and exceptions, directed to be reported, are as follows:
COMPLAINT"The complaint of the above-named plaintiff respectfully shows the Court:
"(1) That the plaintiff is a resident of the County of Greenville, State of South Carolina. That the defendants, Fred Hines and Waller Bailey, are residents of the County of Richland, State of South Carolina; and that the defendant, Jack Brown, is a resident of the County of Greenville, State of South Carolina.
"(2) That on or about the 4th day of June, 1925, plaintiff, D.R. Martin, was driving his Ford touring car on Main Street in the City of Fountain Inn, in the direction of Laurens, S.C. when the defendants, Fred Hines and Waller Bailey, driving a highpowered Lincoln touring automobile, going in an opposite direction at a high and reckless rate of speed, ran said Lincoln automobile directly into plaintiff's car with great force knocking said Ford automobile from fifteen to twenty feet, knocking plaintiff with great force and violence against the windshield of said automobile, causing him to be cut across the nose, and eye and permanently injured plaintiff's eye; and cutting other parts of the face, cutting his finger very severely, battering and bruising his body, knocking plaintiff unconscious and causing him to be confined to his bed for many days and causing plaintiff great pain, anguish and suffering.
"(3) That on account of said injuries, above described, plaintiff has been forced to employ physicians to sew up his face and hand and to render medical services from time to time since said injuries, at great expense to plaintiff. Plaintiff has been forced to have his automobile repaired so as to put it into running condition and to buy extra parts with great expense.
"(4) The injuries and damages above set forth were caused by the negligence and recklessness of the defendants above named, in the following particulars:
"(a) The defendants Fred Hines and Waller Bailey, were driving the Lincoln automobile toward the City of Greenville at a rate of speed greater than is allowed by the ordinances of the City of Fountain Inn, and in violation of said ordinances.
"(b) The defendants, Fred Hines and Waller Bailey, were driving said Lincoln automobile at a greater rate of speed than that allowed by the laws of the State of South Carolina, and in violation of said laws.
"(c) The defendants, Fred Hines and Waller Bailey, were driving said Lincoln automobile at an unlawful rate of speed at the intersection of two streets in the City of Fountain Inn, in violation of the laws of South Carolina.
"(d) The defendants, Fred Hines and Waller Bailey, were driving said Lincoln automobile at a greater rate of speed than was reasonable and proper, considering the conditions and circumstances at the time and place of said collision.
"(e) The defendants, Fred Hines and Waller Bailey, failed to keep a reasonable lookout for automobiles approaching both in front of them and from the intersecting streets in the City of Fountain Inn.
"(f) The defendant, Jack Brown, failed to keep a reasonable lookout for automobiles coming up Main Street in the City of Fountain Inn, and drove his automobile across said street in front of said Lincoln automobile, causing it to swerve to the left and run into plaintiff's automobile, said Lincoln automobile going at such a high rate of speed that it could not stop.
"(g) The defendant, Jack Brown, was driving his car at a rate of speed greater than is allowed by the ordinances of the City of Fountain Inn, and in violation of said ordinances.
"(h) The defendant, Jack Brown, was driving his car at a greater rate of speed than that allowed by the laws of the State of South Carolina, and in violation of said laws.
"(i) The defendant, Jack Brown, was driving his car at an unlawful rate of speed at the intersection of two streets in the City of Fountain Inn, in violation of the laws of South Carolina.
"(j) The defendant, Jack Brown, was driving his car at a greater rate of speed than was reasonable and proper, considering the conditions and circumstances at the time and place of said collision.
"(k) The said Jack Brown's negligence contributed with the negligence of the defendants, Fred Hines and Waller Bailey, in causing the injuries to plaintiff and plaintiff's automobile, as above set forth.
"(5) That on account of the negligence and recklessness of the defendants above named the plaintiff has been damaged in the sum of three thousand dollars.
"Wherefore plaintiff prays judgment against the defendants in the sum of three thousand dollars and for the costs of this action."
EXCEPTIONS"The defendant, Fred Hines, now appeals to this Court and asks that the judgment be reversed upon the following exceptions:
"1st. Because the presiding Judge erred in charging the jury as follows: `If Brown's negligence was the sole cause of the damage and injury done to the plaintiff, why the defendant, Hines, would not be liable; or if the defendant Hines' negligence and carelessness was the sole and direct and proximate cause of the injury, why then Jack Brown would be liable.' The error lies in the fact that the Court in effect charged the jury that they might find a verdict against either one of the defendants on the theory of several liability, whereas the complaint stated a case of joint liability against the defendants as joint tort-feasors and the plaintiff having elected to so bring his suit, must recover, if at all, upon the theory of joint liability, or against both defendants.
"2nd. Because the Court erred in charging the jury as follows: `And if you conclude that the defendant Brown is liable and the defendant Hines is not liable, let your verdict be against Brown in favor of the plaintiff. If you conclude that Hines is liable and Brown is not liable, let your verdict be against Hines in favor of the plaintiff.' The error being that the Court thereby instructed the jury that they might find a verdict against either of the defendants as if the suit had been one of several liability, whereas the complaint stated a cause of action on the theory of joint liability, and since the plaintiff had elected to pursue this remedy, he must recover, if at all, upon the theory of joint liability, or against both defendants.
"3rd. Because the trial Judge erred in overruling defendant Fred Hines' first ground of motion for new trial, which is thus stated: `Because the cause of action is based upon the theory of joint liability, and the plaintiff having exercised the option to sue the defendants as joint tort-feasors, can recover only upon the theory of joint liability. The jury by its verdict, having determined that this was not a case of joint liability, the cause of action fails.' It is submitted that this ground of the motion stated a sound proposition of law, and that the Court was in error in overruling the same; and the Court should have set the verdict aside since it was inconsistent with the theory on which the cause of action was founded.
"For the reasons above stated it is respectfully submitted that the judgment should be set aside and judgment entered for the defendant Hines."
Messrs. P.A. Bonham and Price Poag, for appellants, cite: Cannot recover for several liability in action alleging joint tort: 133 S.C. 326; 113 S.C. 453; 38 Cyc., 491. Where Master and servant charged jointly: 65 S.C. 332; Id., 341; 75 S.C. 293; 93 S.C. 329; 139 S.C. 139. Where only negligence charged to Master is act of servant: 104 S.C. 266; 10 S.C. 20; 109 S.C. 245; 130 S.C. 165. Cases distinguished: 1 Mill. Const., 333.
Messrs. Dean, Cothran Wyche, for respondent, cite: As to action against joint and several tort-feasor: 1 Mill Const., 333; 139 S.C. 139; 93 S.C. 399; 65 S.C. 341; 75 S.C. 290. Cases distinguished: 106 S.C. 20; 109 S.C. 245; 130 S.C. 165; 133 S.C. 326.
March 22, 1929. The opinion of the Court was delivered by
This action by the plaintiff, D.R. Martin, was commenced in the Court of Common Pleas for Greenville County, August 12, 1925, against the defendants, Fred Hines, Waller Bailey and Jack Brown, for damages for injuries received by the plaintiff growing out of an automobile collision alleged to have been caused by the defendants. In their answer all of the defendants denied liability. The case was tried at the February, 1927, term of Court of Common Pleas for said County of Greenville, before his Honor, Judge J.W. De Vore, and a jury. At the conclusion of the testimony, on motion of counsel for the defendant, Bailey, his Honor, Judge De Vore, directed a verdict as to him and submitted the case to the jury as to the other defendants, Hines and Brown, no motion for a direction of a verdict having been made as to them. The jury rendered a verdict in the sum of $1,000 against the defendant, Hines, but nothing against Brown, whereupon Hines, through his counsel, made a motion for a new trial, which was refused. From the judgment the defendant Hines has appealed to this Court upon exceptions which will be reported.
Appellant presents three exceptions, wherein he imputes error to the presiding Judge. Under the first and second exceptions error is alleged in the charge to the jury, and under the third exception error is charged on account of his Honor's refusal to grant the motion for a new trial. However, the real question involved in the appeal is whether or not the plaintiff was entitled to recover against the defendant, Hines, alone, the defendant, Brown, having been exonerated and relieved by the verdict of the jury; it being the contention of the appellant that as the complaint was based upon the theory of joint liability, having been brought against the defendants as joint tort-feasors, the plaintiff could recover only upon the theory of joint liability. The disposition of this question will dispose of all questions raised by the exceptions.
By reference to the complaint, which will be reported with the case, it will be observed that the plaintiff alleged against the defendants, Hines and Bailey, five separate acts of negligence, and against the defendant Brown five separate acts of negligence. Then follows allegations against the three, Hines, Bailey and Brown, to wit:
"The said Jack Brown's negligence contributed with the negligence of the defendants, Fred Hines and Waller Bailey, in causing the injuries to plaintiff and plaintiff's automobile, as above set forth.
"That on account of the negligence and recklessness of the defendants above named the plaintiff has been damaged in the sum of three thousand dollars."
It is true, as contended by appellant that joint tort-feasors cannot be sued both separately and jointly, and when the complaint contains allegations to that effect, the defendants have a right to require an election. The rule on this question is clearly and aptly stated by Mr. Justice Cothran, as the organ of this Court, in the case of Pendleton v. Columbia Railway Gas Electric Co. et al., reported in 132 S.C. 510, 128 S.E., 711, 712. In that case there was an appeal to this Court from an order of the Circuit Judge refusing defendant's motion "to require the plaintiff to elect between the separate and several acts of negligence charged to the defendants and the joint acts of negligence charged to them." The respondent moved before this Court to dismiss the appeal upon the ground that the order refusing the defendants' motion was not appealable and that the appeal was frivolous. This Court held that the order of the Circuit Judge refusing the motion to elect involved the merits and was appealable before final judgment, and therefore refused the motion to dismiss the appeal. In discussing the question, Mr. Justice Cothran, speaking for the Court, expressed the rule thus:
"If a complaint contains separate and independent acts of negligence on the part of two or more tort-feasors, capable severally of producing the result complained of [italics ours], coupled with the allegation of joint negligence on the part of all of the defendants, whether stated in separate causes of action or in `jumbled' form, the defendant has the right to require the plaintiff to elect upon which cause of action he will rely, upon the principle announced in McKenzie v. Railway Co., 113 S.C. 453, 102 S.E., 514, that joint tort-feasors cannot be sued both separately and jointly. But if the complaint simply alleges co-operating causes leading to the result [italics ours], instead of several causes each sufficient of itself to produce the result, such acts constitute but a single cause of action" — citing Sloan v. R. Co., 64 S.C. 389, 42 S.E., 197.
When the appeal in the Pendleton case, supra, was heard, the Court in its opinion, written by Mr. Justice Marion, reported in 133 S.C. 326, 131 S.E., 265, in effect held that the complaint did not contain allegations of separate and independent acts of negligence on the part of the alleged tort-feasors, capable severally of producing the result complained of, but that the complaint simply set forth "co-operating causes leading to the result," which constituted but a single cause of action against the defendants as joint tort-feasors. Therefore this Court affirmed the action of the Circuit Judge in refusing to require the plaintiff to elect.
In the case at bar there was no motion to require the plaintiff to elect between the separate and joint acts of negligence set forth in plaintiff's complaint, and the case was submitted to the jury under the general allegations of the complaint. The presiding Judge in his charge instructed the jury in the law both as to separate acts of negligence and as to joint acts of negligence, without objection, and instructed the jury that a verdict might be rendered against both of the defendants, if both under the proof were liable, or against Brown alone, if Brown under the proof was liable and Hines not liable, or against Hines alone, if Hines under the proof was liable and Brown not liable. This statement of the issues was made by the presiding Judge without objection. But it is the contention of appellant that the action was brought against the defendants upon the theory of joint liability, and contends under authority of the Pendleton case, supra, that the allegations of the complaint show that the plaintiff elected to treat the action on the theory of joint tort. We do not agree with this contention. As pointed out in the opinion in the Pendleton case, supra, if the complaint simply alleges "co-operating causes leading to the result, instead of several causes each sufficient of itself to produce the result, such * * * constitute but a single cause of action," as was the case in the Pendleton case; but where the several causes are each sufficient of itself to produce the result complained of, as contained in the complaint in the case at bar, there is no presumption that the plaintiff elected to bring the action on the theory of joint tort, and it is incumbent upon the defendant to make a motion to require the plaintiff to elect between separate and joint acts, and failing to do this, it is the duty of the Judge at the trial of the case to submit to the jury the question of liability, both under the separate acts of negligence alleged and under the point acts of negligence alleged. That was what the presiding Judge did in this case, and there was no error in so doing, and, the jury having returned a verdict against but one of the defendants, there was likewise no error in refusing to set the verdict aside.
In support of the view herein expressed, we, also, call attention to the opinion written by Mr. Justice Stabler, in the recent case of Fennell v. Woodward, reported in 141 S.C. 173, 139 S.E., 383.
The exceptions are therefore overruled, and it is the judgment of this Court that the judgment of the Circuit Court be, and is hereby, affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, BLEASE and STABLER concur.
ON PETITION FOR REHEARING
Rehearing denied.
I think that the opinion which has been filed demonstrates a misconception of the complaint. The opinion proceeds upon the theory that the cause of action alleged is based upon separate and distinct acts of negligence on the part of the several defendants. Upon consideration I construe it to be based upon the joint and co-operating acts of the several defendants, no one of which was sufficient of itself to cause the disaster, but that the several acts of negligence attributed to the individual defendants were alleged as acts, though separate, combined, and concurred in producing the injury of which the plaintiff complained, not as separate acts "capable severally of producing the result complained of." Pendleton v. Columbia Ry., Gas Electric Co., 132 S.C. 507, 128 S.E., 711.
The complaint, therefore, stated a cause of action based upon a joint tort. The verdict against one of the alleged joint tort-feasors was a repudiation of this theory, and can be sustained only upon the finding that the defendant against whom recovery was had was solely and individually responsible for the calamity. To allow it to stand is virtually to deprive the defendant of the right to require an election if there should be anything in the complaint upon which this individual liability could be based.
In the second appeal of the Pendleton case, 133 S.C. 326, 131 S.E., 265, the Court said: "The plaintiff expressly alleges that the separate acts of negligence attributed to each of the defendants concurred and co-operated to produce the result — the injury complained of. Having elected to sue the two defendants in one action, and having alleged that the acts of each concurred in causing his injury — the only theory upon which he was entitled to sue both in one action — he must recover, if at all, upon the theory of joint liability, and not upon that of separate causes of action predicated upon the several liability of the two defendants."
Of course, if the complaint was based upon the joint co-operative acts of all of the defendants, a motion to require an election could not have been entertained.
I therefore withdraw my concurrence in the opinion which has been filed and favor a rehearing of the appeal.