Barber v. Wooten

66 S.E.2d 690 (1951)

234 N.C. 107

BARBER v. WOOTEN et al.

No. 21.

Supreme Court of North Carolina.

September 19, 1951.

*691 McMullan & Aydlett, Elizabeth City, for plaintiff, appellee.

Frank B. Aycock, Jr., Elizabeth City, for defendant Wooten, appellant.

J. Henry LeRoy, Elizabeth City, for defendant Layden, appellant.

John H. Hall, Elizabeth City, for defendant Scaff, appellant.

STACY, Chief Justice.

The case is controlled by what was said in Hester v. Horton Motor Lines, 219 N.C. 743, 14 S.E.2d 794; Lewis v. Hunter, 212 N.C. 504, 193 S.E. 814; West v. Collins Baking Co., 208 N.C. 526, 181 S.E. 551. It will be noted the complaint alleges a sequence of events which successively, concurrently and jointly produced the plaintiff's injuries. The defendants are sought to be held liable as joint tort-feasors. Levins v. Vigne, 339 Mo. 660, 98 S.W.2d 737, and 4 Blashfield, Sec. 2552. The plaintiff alleges successive, joint and concurrent torts which in their cumulative effect produced her injuries.

There may be two or more proximate causes of an injury. These may originate from separate and distinct sources or agencies operating independently of each other, yet if they join and concur in producing the result complained of, the author of each cause would be liable for the damages inflicted, and action may be brought against any one or all as joint tort-feasors. White v. Carolina Realty Co., 182 N.C. 536, 109 S.E. 564.

The defendants, on the other hand, take the position that the negligence of Wooten came to an end before the Layden truck struck the McHorney car and that the negligence of both Wooten and Layden had spent themselves before the Scaff car came upon the scene, and that, therefore, the negligence of each defendant was separate and distinct from the negligence of the others, resulting in three separate and distinct injuries and giving rise to three separate and distinct causes of action against three separate and disconnected defendants. This was the theory of the decision in Atkins v. Steed, 208 N.C. 245, 179 S.E. 889, cited by appellants, where no allegation of joint or concurrent negligence was made. True, the plaintiff there asked for a "joint" recovery, but not on the ground of successive, joint and concurrent torts as here. On demurrer we take the case as made by the complaint.

The rights of the defendants as against the plaintiff or as among themselves would not arise on demurrer unless made to appear on the face of the complaint, which is not the case here. G.S. § 1-240; Whiteman v. Seashore Transportation Co., 231 N.C. 701, 58 S.E.2d 752; Tarkington v. Rock Hill Printing & Finishing Co., 250 N.C. 354, 53 S.E.2d 269, 11 A.L.R.2d 221; Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808.

*692 The complaint appears sufficient to withstand the demurrers.

Affirmed.

NOTEThis opinion was written in accordance with the Court's decision and filed by order of the Court after Chief Justice STACY'S death.

VALENTINE, J., took no part in the consideration or decision of this case.

BARNHILL, Justice (concurring).

It does not appear on the face of the complaint that there was any appreciable interval of time between the three collisions. Hence, the question defendant seeks to raise is not presented by the demurrer. Hodgin v. North Carolina Public Service Corporation, 179 N.C. 449, 102 S.E. 748; Hester v. Horton Motor Lines, 219 N.C. 743, 14 S.E.2d 794; cf. Shaw v. Barnard, 229 N.C. 713, 51 S.E.2d 295. The opinions in the wrongful death cases arising out of the same accidents, this day filed, are clearly in accord with our decisions to which we adhere.