Opinion
16009
November 11, 1947.
Appeal from Common Pleas Court of Spartanburg County; J. Woodrow Lewis, Judge.
Action by Joe L. Montgomery against the Service Oil Company, Inc., and the War Emergency Cooperative Association for damages resulting from a collision between plaintiff's automobile and defendant corporation's truck leased to codefendant. From orders overruling defendant association's demurrer to the complaint and denying its motions to require separate statement of several causes of action and election between them, defendant association appeals.
Affirmed.
Messrs. Osborne, Butler Moore, of Spartanburg, for Appellant, cite: As to where two inconsistent causes of action are jumbled in the same Complaint a Motion to require Plaintiff to elect is the proper remedy: 136 S.C. 231, 134 S.E. 222; 101 S.C. 125, 85 S.E. 241. As to where causes of action are jumbled in the same Complaint and may not be joined in one action, a Demurrer is proper, without first moving to require the causes of action to be separately stated: 143 S.C. 264, 141 S.E. 450; 195 S.C. 358, 11 S.E.2d 391. As to where two causes of action may be joined in the same Complaint, but are jumbled, a Defendant may properly require that they be separately stated in separate causes of action: 125 S.C. 297, 118 S.E. 617; 155 S.C. 388, 152 S.E. 675. As to Orders refusing such Motions and overruling such a Demurrer involving the merits and being immediately appealable: 125 S.C. 297, 118 S.E. 617; 132 S.C. 517, 128 S.E. 711. As to requirement that causes of action, joined in a complaint, be consistent: 136 S.C. 231, 134 S.E. 222. As to the doctrine of respondent superior not applying to the relationship of bailor and bailee: 6 Am. Jur. 396, Sec. 313; 22 L.R.A. 64; 5 Am. Jur. 694, Sec. 353; 193 S.C. 176, 7 S.E.2d 833; (Va.) 153 S.E. 664; 225 N.C. 232, 34 S.E.2d 2; 197 N.C. 720, 150 S.E. 501; 212 N.C. 43, 192 S.E. 849; (N.C.) 196 S.E. 815; 212 N.C. 751, 194 S.E. 479; (Ga.) 176 S.E. 659; 193 S.C. 364, 9 S.E.2d 129; 85 S.C. 346, 67 S.E. 292; 87 S.C. 361, 69 S.E. 666; 25 S.C. 216. As to there being no basis for joint liability in this cause, and those severally liable must be severally sued: 132 S.C. 507, 128 S.E. 711; 108 S.C. 145, 93 S.E. 716; 113 S.C. 453, 102 S.E. 514.
Messrs. Perrin, Tinsley Perrin, of Spartanburg, for Respondent, cite: As to the necessary elements of a judicial "action": Words and Phrases, Perm. Ed. Vol. 6, p. 355. As to estoppel against the owner of the vehicle to deny the existence of the relation of master and servant between himself and the person in charge of the vehicle: 6 Am. Jur. 396, Sec. 313. As to liability not resting upon ownership or agency, but upon the combined negligence of the bailor and bailee: 6 Am. Jur., Sec. 314.
November 11, 1947.
The complaint in this action for damages resulting from a collision between plaintiff's passenger automobile and a truck alleges that the defendant, Service Oil Company, Inc., owned the truck which it leased to its codefendant, War Emergency Cooperative Association, in 1945 and thereby gave control of it as if it were owned by the lessee. It is then alleged "that the tractor (truck) of the defendants herein, driven by their agent and servant", was operated negligently, carelessly, willfully and recklessly, in specified particulars, at the time of the collision. Other allegations in the complaint are to the same effect, to wit, that the driver of the truck at the time of the accident was the agent and servant of the defendants, and that the alleged tortious acts were by the defendants through their alleged agent and servant, the driver of the truck. The complaint contains other allegations usual in the statement of such a cause of action and the prayer is for judgment against both defendants.
War Emergency Cooperative Association demurred upon the ground that two causes of action are improperly joined and that there is no statement of a cause of action upon joint liability, for one of the defendants is alleged to have been the owner of the offending vehicle and the other the lessee. The same defendant moved for an order requiring the separate statement of the alleged several causes of action, and that the plaintiff be required to elect as to which defendant he will proceed against. The demurrer was overruled and the motion refused by formal orders of the Circuit Court. From such, War Emergency Cooperative Association presses this appeal.
Appellant states the issues raised by the exceptions as follows: In an action for damages arising out of collision between automobile and truck-tractor against both owner and lessee of truck-tractor is not action against both owner and lessee inconsistent and incompatible so that action can proceed only against one or the other, but not both? If action can proceed against both in the same complaint should not the causes of action against them be separately stated?
It is apparent that appellant has confused the statement of two causes of action with the statement of one cause of action against jointly liable defendants. Liberally construed, as it must be under the Code, the complaint states one cause of action in tort for damages against two defendants who are jointly and severally liable. Of course, this is permissible. The demurrer and motion were properly overruled.
Walker v. McDonald, 136 S.C. 231, 134 S.E. 222, is cited by appellant. There involved was the attempt to join separate causes of action which were inconsistent with each other, and the rule was stated relating to the rare occasion when such may be done. The unquestioned authority of the decision is inapplicable here. The author of the opinion said this in the subsequent case of Fant v. Brissey, 143 S.C. 264, 141 S.E. 450, 453, which is relevant to the denial of the demurrer here: "It is well settled that a demurrer for misjoinder of parties will not lie. Wright v. Willoughby, 79 S.C. 438, 60 S.E. 971. A demurrer for defect of parties will lie, but not for a multiplicity."
It is necessary to keep in mind that the facts alleged in the complaint and all reasonable inferences derivable from them are taken as true in the consideration of the appeal. If one of the defendants was solely responsible for the operation of the truck at the time of the collision, the remedy of the other lies in answer and proof upon trial to that effect. The facts will control and they are within the knowledge of the defendants. However, they cannot avail themselves of contrary facts by demurrer and motions at this stage, in view of the allegations of the complaint which have been stated. These allegations were properly deemed by the lower court to be true, for the purpose of the consideration of the demurrer and motion. There was no error in the orders overruling them.
Affirmed.
BAKER, CJ., and FISHBURNE, TAYLOR and OXNER, JJ., concur.