Batts v. Faggart

133 S.E.2d 504 (1963)

260 N.C. 641

Paul A. BATTS v. Jack Lewis FAGGART, Edward Lee Futrell, Morgan Trucking Company, and Equipment Leasing Company.

No. 378.

Supreme Court of North Carolina.

December 11, 1963.

W. H. Steed and Charles F. Lambeth, Jr., Thomasville, for plaintiff appellee.

Walser & Brinkley, Lexington, for defendant appellant Faggart.

BOBBITT, Justice.

Faggart asserts, as his first ground of demurrer, that the complaint does not allege a cause of action against him. If this be true, there is no misjoinder of parties and causes of action. Shaw v. Barnard, 229 N.C. 713, 51 S.E.2d 295; Jordan v. Maynard, 231 N.C. 101, 56 S.E.2d 26; Wetherington v. Whitford Motor Co., 240 N.C. 90, 81 S.E.2d 267.

The complaint contains no allegation of injury or damage proximately caused by the first collision, to wit, when plaintiff's car was struck by the car operated by Faggart. Plaintiff seeks to recover for injuries caused by the second collision, to wit, when plaintiff's car was struck by the tractortrailer operated by Futrell.

The complaint alleges the second collision and plaintiff's injuries were proximately caused by the negligence of Futrell while acting as agent for the corporate defendants. The crucial question is whether, upon the facts alleged, the alleged negligence of Faggart, conceding his negligence proximately caused the first collision, may be considered a (concurring) proximate cause of the second collision. If not, plaintiff has alleged no cause of action against Faggart and his demurrer should be sustained on that ground, not for misjoinder of parties and causes of action.

"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." Barber v. Wooten, 234 N.C. 107, 109, 66 S.E.2d 690; Riddle v. Artis, 243 N.C. 668, 670, 91 S.E.2d 894. "This principle is applicable *507 when the facts are such as to justify the view that the several acts of negligence on the part of two different persons concur in contributing proximately to the injury complained of." Tillman v. Bellamy, 242 N.C. 201, 204, 87 S.E.2d 253.

Plaintiff contends the facts alleged in the complaint support his allegations that the second collision was proximately caused by the joint and concurring negligence of all defendants. Faggart contends it appears from the facts alleged by plaintiff that the negligence of Futrell was the sole proximate cause of the second collision and that his (Faggart's) negligence was not a concurring proximate cause.

"The doctrine of intervening negligence is well established in our law. Its essential elements and governing principles are well defined and elaborately explained in former decisions of this Court. Further elaboration here is unnecessary." Riddle v. Artis, supra, and cases cited; Smith v. Grubb, 238 N.C. 665, 78 S.E.2d 598, and cases cited.

This Court, in Butner v. Spease, 217 N.C. 82, 87, 6 S.E.2d 808, and prior cases, has quoted with approval this statement from the opinion of Mr. Justice Strong in Milwaukee & St. Paul R. Co. v. Kellogg, 94 U.S. 469, 475, 24 L.Ed. 256: "The question always is: was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? It is admitted that the rule is difficult of application. But it is generally held, that in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances."

The facts alleged disclose: As a result of the first collision, the plaintiff "was momentarily stunned and shocked." When he "regained his senses," his car "was stopped crossways in the middle of said northbound lanes of traffic." Upon regaining his senses, plaintiff proceeded to drive his car forward, to turn to his left and to proceed into and along "the eastern or outside lane" for northbound traffic. The tractor-trailer operated by Futrell, traveling north, "approached plaintiff's automobile on the eastern or outside lane of said highway, and he ran into the rear end of plaintiff's automobile with such terrific force * * *" Futrell had "an unobstructed view of plaintiff and the scene of his peril" for a distance of 900 feet. Notwithstanding, he did not apply his brakes or slow down but continued at a speed of more than 60 miles per hour and crashed into the rear of plaintiff's car.

Under the facts alleged, the second collision did not occur when plaintiff's car "was stopped crossways in the middle of said northbound lanes of traffic." Nor did it occur while plaintiff was "stunned and shocked." On the contrary, it occurred after plaintiff had "regained his senses" and had operated his car onto and was proceeding north along the eastern or outside lane for northbound traffic. Plaintiff had regained control of his car and was operating it in the proper lane for northbound traffic when the tractor-trailer operated by Futrell overtook plaintiff's car and crashed into the rear thereof. Futrell's view of these occurrences was unobstructed. Absent the first collision, if plaintiff, traveling south, had turned left, crossed the median and turned left into and proceeded north along the eastern or outside lane for northbound traffic his car would have been in the same position as when overtaken and struck by the tractor-trailer. In our view, plaintiff's factual allegations affirmatively disclose that negligence on the part of Faggart in proximately causing the first collision was not a proximate cause of the second collision.

*508 In Barber v. Wooten, supra, and in Riddle v. Artis, supra, the decisions stressed by plaintiff, demurrers interposed on the ground of misjoinder of parties and causes of action were overruled. These cases are readily distinguishable. In Barber, the plaintiff was a passenger. In Riddle, the plaintiff was an operator. In each, the complaint alleged the plaintiff was seriously injured and unable to extricate herself (himself) as a result of the first collision. In each, it appears from the plaintiff's allegations that the car occupied by the plaintiff was not operated by anyone between the first and succeeding collision(s).

In other decisions cited by plaintiff, the evidence was held sufficient to require submission of an issue as to the joint and concurrent negligence of the defendants. In Lewis v. Hunter, 212 N.C. 504, 193 S.E. 814, the plaintiff's intestate, a pedestrian, as a result of being struck by the car of defendant Hunter, was lying prostrate and unconscious in the street when struck by the car of defendant Spears. In West v. Collins Baking Co., 208 N.C. 526, 181 S.E. 551, the plaintiff's intestate, a pedestrian, was struck, knocked down and injured by the car of one defendant and while attempting to rise was struck by the truck of the other defendants. Successive collisions are not involved in Tillman v. Bellamy, supra, and in Bumgardner v. Allison, 238 N.C. 621, 78 S.E.2d 752.

While not cited by plaintiff, it seems appropriate to refer to Hall v. Coble Dairies, 234 N.C. 206, 67 S.E.2d 63, 29 A.L.R.2d 682, where a judgment sustaining the defendants' demurrer to the complaint was reversed. There, the complaint alleged that, as a result of a collision proximately caused by the defendants' negligence, the plaintiff was "severely shocked and shaken up"; that after getting out of his car, the plaintiff was "still in a dazed and addled condition from shock caused by the collision"; and that, while in said condition, plaintiff was struck and injured by a car operated by an unidentified motorist.

Judge Gambill's order overruling Faggart's demurrer is erroneous and is vacated. Faggart's demurrer should have been sustained on the first ground asserted therein, namely, that the complaint does not allege facts sufficient to constitute a cause of action against him, thereby eliminating the question as to misjoinder of parties and causes of action. The cause is remanded with direction that such order be entered.

It is noted that defendant Futrell and the corporate defendants are not parties to this appeal. This decision does not affect the pendency of the action as between plaintiff and these defendants or their rights and liabilities inter se. In this connection, see Shaw v. Barnard, supra; Jordan v. Maynard, supra; Wetherington v. Whitford Motor Co., supra.

Error and remanded.