Capiolo v. Stuart ( 1941 )

In an action by an infant plaintiff to recover damages for personal injuries sustained as the result of the negligence of an operator of an automobile, or as the result of an assault by one or more of the defendants other than the defendant Laura Belle Stuart, and by her father for loss of services and medical expenses, order denying motion of the defendant Laura Belle Stuart for a severance of the action reversed on the law and the facts, without costs, and motion granted, without costs, to the extent of directing a trial of the issues presented by the second, third, fourth and sixth causes of action separately and prior to the trial of the issues presented by the first and fifth causes of action. There is no common ground of liability set forth in the complaint. On the contrary, the injuries are alleged, inconsistently, to have been caused by the negligent operation of an automobile and by reason of an assault. Liability of the appellant as owner, pursuant to the statutory liability for negligence of the driver of the automobile resulting in the alleged injuries, should be tried separately from the issues presented by the other causes of action dealing with the assault and conspiracy to commit it. There should, however, be but one trial of the issue of negligence as against all of the defendants who are alleged to be liable therefor. Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ., concur.