Barber v. Wooten

66 S.E.2d 690, 234 N.C. 107, 1951 N.C. LEXIS 426

• Court: Supreme Court of North Carolina
• Decided: September 19, 1951
• Docket: 21
• Status: Published

Opinions

Stacy, C. J.

Tbe case is controlled by wbat was said in Hester v. Motor Lines, 219 N.C. 743, 14 S.E. 2d 794; Lewis v. Hunter, 212 N.C. 504, 193 S.E. 814; West v. Baking Co., 208 N.C. 526, 181 S.E. 551. It will be noted tbe complaint alleges a sequence of events wbicb successively, concurrently and jointly produced tbe plaintiff’s injuries. Tbe 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. Tbe plaintiff alleges successive, joint and concurrent torts wbicb in tbeir 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 tbe result complained of, tbe author of each cause would be liable for tbe 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.

Tbe defendants, on tbe other band, take tbe position that tbe negligence of Wooten came to an end before tbe Layden truck struck tbe MeHorney ear and that tbe negligence of both Wooten and Layden bad spent themselves before tbe Scaff ear came upon tbe scene, and that, therefore, tbe negligence of each defendant was separate and distinct from tbe negligence of tbe 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 tbe theory of tbe decision in Atkins v. Steed et al., 208 N.C. 245, 179 S.E. 889, cited by appellants, where no allegation of joint or concurrent negligence was made. True, tbe plaintiff there asked for a “joint” recovery, but not on tbe ground of successive, joint and concurrent torts as here. On demurrer we take tbe case as made by tbe complaint.

Tbe rights of tbe defendants as against tbe plaintiff or as among themselves would not arise on demurrer unless made to appear on tbe face of tbe complaint, wbicb is not tbe case here. G.S. 1-240; Whiteman v. Transportation Co., 231 N.C. 701, 58 S.E. 2d 752; Tarkington v. Printing Co., 230 N.C. 354, 53 S.E. 2d 269; Butner v. Spease, 217 N.C. 82, 6 S.E. 2d 808.

Tbe complaint appears sufficient to withstand tbe demurrers.

Affirmed.

Note: This opinion was written in accordance with the Court’s decision and filed by order of the Court after Chief Justice Stacy’s death.

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