Besharian v. Rhode Island Company , 41 R.I. 94 ( 1918 )

This is an action of trespass on the case for negligence brought against the Rhode Island Company and The United Coal Company, both corporations and each doing business in the city of Providence.

The amended declaration is in six counts. In the first and second counts the plaintiff alleges that his wife while riding as a passenger on one of the electric cars of the defendant, the Rhode Island Company, was injured as the result of a collision between said car and a motor truck of the defendant, The United Coal Company, which collision occurred "because the said defendants and their respective agents and servants not regarding their duties in the premises did not use due and proper care and skill in the management of their respective vehicles but on the contrary did then and there so carelessly run, manage and operate said car and said motor truck respectively that said vehicles in attempting to pass collided and came together," through "the simultaneous connected and concurrent negligence of said defendants and their respective agents and servants." In the third and fourth counts the plaintiff alleges that his wife while a passenger as aforesaid was injured by reason of the negligence of the agents and servants of the Rhode Island Company in operating said car "in such a careless and reckless manner that said car collided with great violence with a motor truck belonging to The United Coal Company." In the third and fourth counts the plaintiff does not allege any negligence on the part of The United Coal Company or its agents and servants. In the fifth and sixth counts the plaintiff alleges that his wife while a passenger as aforesaid was injured by reason of the negligence of the agents and servants of The United Coal Company in so carelessly operating the motor truck of said company that it came into collision with the electric car of the Rhode Island Company upon which she was riding. In the fifth and sixth counts the plaintiff does not allege negligence on the part of the Rhode Island Company or its agents or servants. In each count the plaintiff alleges that by reason of the injuries to his wife set out in said count the plaintiff has lost the services of his wife and has been obliged to pay out large sums of money in endeavoring to cure his wife of her injuries.

The defendant the Rhode Island Company demurred to the whole declaration on the grounds that the defendants are improperly joined, that the acts complained of are not the joint torts of the defendants, and that there is no community of wrong-doing alleged between said defendants. This demurrer was sustained by a justice of the Superior Court; and the case is before us upon the plaintiff's exception to that ruling of said justice.

The ruling of said justice in sustaining the demurrer to the declaration was clearly without error in so far as said ruling relates to the third, fourth, fifth and sixth counts of said declaration. The action is one against said defendants as joint tort-feasors. Correct pleading permits the plaintiff to join in his declaration only such counts as allege common causes of action against said defendants. The third and fourth counts each purports to set forth a distinct cause of action against the Rhode Island Company alone; and the fifth and sixth counts each sets out a distinct several cause of action against The United Coal Company. The plaintiff urges in support of the propriety of this pleading the provisions of Section 20, Chapter 283, General Laws, 1909, which is as follows: "Sec. 20. Whenever in any action the plaintiff is in doubt as to the person from whom he is entitled to recover, he may join two or more defendants with a view of ascertaining which, if either, is liable; and the plaintiff shall recover only against such of the defendants as may be liable therein, and such as are not liable shall recover such costs, single or double, as the court in its discretion shall deem proper." This statute in the circumstances set forth therein permits the plaintiff to proceed against two or more defendants jointly. The declaration in such joint action must conform to the rules of correct pleading against joint defendants and can only set forth in each of its several counts a joint cause of action against all the defendants. It is not the intent of the statute that in a joint action against two or more defendants the plaintiff may join distinct several causes of action against the different defendants. Phenix Iron Foundry v.Lockwood, 21 R.I. 556; Mason v. Copeland, 27 R.I. 232.

In support of his exception to the ruling of said justice in so far as said ruling relates to the first and second counts of the declaration the plaintiff urges that in each of said counts he has alleged a joint tort of the two defendants. We are unable to agree with him in this. He has set out in each count a distinct wrongful act of each of the two defendants, respectively acting through their agents and servants; which wrongful acts, occurring at the same time and place, brought about the collision and caused the injury to the plaintiff's wife.

In accordance with the decisions of this court, however, such concurring acts of negligence do not constitute a joint tort. The wrongful act of the Rhode Island Company as alleged consisted in disregarding its duty to so prudently operate its electric car that the plaintiff's wife in the exercise of due care should not be injured thereby; and the wrongful act of The United Coal Company consisted in its disregard of a like duty in the operation of its motor truck. The wrongful act of either without the concurring unlawful act of the other might not have produced the effect alleged, but according to our decisions such circumstance does not render the two defendants joint tort-feasors. By reason of the two distinct, though related torts, the defendants are not jointly, but collaterally liable.Bennett v. Fifield, 13 R.I. 139. In Cole v. Lippitt,22 R.I. 31, the court said: "parties cannot be declared against jointly where there is no community of wrong-doing, even though the tort of one might be such that, without it, the neglect of duty charged upon the other would not have followed;" and further the court said, "A joint liability is not made out by patching together individual liabilities which may arise from different relations to the same transaction." In Mason v. Copeland,27 R.I. 232, the court laid it down as the rule in this State, that to constitute a joint tort there must be the concurrence of intention on the part of the defendants to commit the act which is alleged to be unlawful and tortious and "the mere unintentional concurrence of the acts of two distinct parties resulting in damage to the plaintiff does not give him an action against the parties jointly, but a separate action against each of them." The plaintiff in the case at bar urges that Mason v.Copeland, supra, is not an authority here because "of the different nature of the duties owed by the different defendants to the plaintiff in that case;" while in the case at bar the duty of each defendant to the plaintiff was of the same nature. In our opinion this case and Mason v. Copeland cannot be so distinguished. The point of the decision in Mason v. Copeland is that a joint tort had not been alleged because the declaration charged on the part of each defendant the breach of a distinct duty which that defendant owed to the plaintiff; the point is not that as to each defendant there was the allegation of a breach of duty differing in its nature from the duty owed to the plaintiff by the other defendant.

In support of this branch of his case also the plaintiff urges upon us the provisions of Section 20, Chapter 283, General Laws, 1909, quoted supra, and urges that under the authority of that statute he should be permitted to proceed upon his first and second counts though we may be of the opinion that in each of those counts a joint tort has not been alleged. In our opinion that contention will not avail the plaintiff. The section in question is for the relief of a plaintiff who is in doubt as to which one of a number of persons is guilty of a certain act which has caused an injury and which he regards as tortious. The section is not intended for the relief of one who is in doubt as to which of a number of acts, each committed by different persons, and each alleged to be unlawful, has caused the injury for which he wishes to complain.

The plaintiff has called to our attention certain cases from other jurisdictions which he claims support his contention. We have examined these cases, as this court did similar cases before rendering the opinion in Mason v. Copeland, supra, and we must say, as was said in that case, that we see no good reason for departing from the logical rule of practice and pleading which has long been established in this State.

The plaintiff's exception is overruled. The case is remitted to the Superior Court for further proceedings.