Glazener v. Safety Transit Lines, Inc., 196 N.C. 504 (1929)

Jan. 9, 1929 · Supreme Court of North Carolina

196 N.C. 504

JULIAN A. GLAZENER v. THE SAFETY TRANSIT LINES, Inc., and T. C. HENDERSON.

(Filed 9 January, 1929.)

Parties — Defendant — Joinder — Joint Tort-Feasors — Automobiles — Demurrer.

Where the plaintiff alleges that he was riding in an automobile independently driven by another, and that he received injuries proximately caused by the concurrent negligence of such driver, and the driver of another automobile, alleging in detail sufficient matters to constitute negligence on the part of both drivers, the negligence alleged is of a joint tort, permitting recovery against each or both joint tort-feasors, and a demurrer to the complaint for misjoinder of parties and causes of action is bad.

Appeal by defendant, Tbe Safety Transit Lines, Inc., from Bchenck, J., at August Term, 1928, of TraNsylvaNia.

Affirmed.

Action to recover damages for personal injuries caused by tbe joint and concurrent negligence of defendants.

From judgment overruling its demurrer to tbe complaint, defendant, Tbe Safety Transit Lines, Inc., appealed to tbe Supreme Court.

No counsel for plaintiff.

L>. L. English for defendant.

Pee CuriaM.

There is no error in tbe judgment overruling appellant’s demurrer to tbe complaint, upon tbe ground, first, that tbe facts stated therein are not sufficient to constitute a cause of action; and, second, that there is a misjoinder therein both of parties and causes of action.

Tbe facts alleged in tbe complaint, taken to be true for tbe purposes of this appeal, are sufficient to constitute a cause of action against both defendants. Plaintiff, while riding as a guest in an automobile driven by defendant, T. C. Henderson, was injured as tbe result of a collision between said automobile and a. bus owned and operated by defendant, Tbe Safety Transit Lines, Inc., on a State Highway. Upon tbe facts alleged in tbe complaint, tbe proximate cause of plaintiff’s injuries was tbe joint and concurrent negligence of tbe defendants. Upon these facts they are liable as joint tort-feasors. Lineberger v. City of Gastonia, ante, 445; Moses v. Morganton, 192 N. C., 102, 133 S. E., 421.

In Ballinger v. Thomas et al., 195 N. C., 517, 142 S. E., 761, it is said: “That one who is riding in an automobile, tbe driver of which is not bis agent or servant, nor under bis control, and who is injured by tbe joint or combined negligence of a third person and tbe driver, may recover of either or both, upon proper allegations, for tbe injuries thus inflicted through such concurring negligence, is fully established by our own decisions, and tbe great weight of authority elsewhere.” See cases cited.

. There are no inconsistent allegations with respect to tbe negligence of tbe defendants in this case, as there were in Ballinger v. Thomas. Nor is tbe allegation that tbe joint and concurrent negligence of defendants was tbe proximate cause of plaintiff’s injuries, merely a conclusion of law by tbe pleader. Tbe facts with respect to tbe negligence of both defendants are alleged in the complaint, specifically and in detail. Upon these facts plaintiff is entitled to recover of either or both of the defendants.

The action is remanded to the Superior Court of Transylvania County, to the end that defendants may file answers to the complaint, if they are so advised. The judgment is

Affirmed.