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Barber v. Wooten

RUTH N. BARBER v. LULA M. WOOTEN, Admx., Et Al.

Barber v. Wooten, 66 S.E.2d 690 (N.C. 1951)
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Court
Supreme Court of North Carolina · State Highest Courts
Decided
September 19, 1951
Docket
No. 21
Judges
Stacy, Barnhill, Yalentine
Citations
66 S.E.2d 690234 N.C. 1071951 N.C. LEXIS 426

Opinion of the Court — Stacy

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.

*110 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.

Concurrence — Barnhill

Barnhill, J.,

concurring: It does not appear on the face of the complaint that there was any appreciable interval of time between the three collisions. Hence, the question defendants seek to raise is not presented by the demurrer. Hodgin v. Public Service Corporation, 179 N.C. 449 , 102 S.E. 748 ; Hester v. Motor Lines, 219 N.C. 743 , 14 S.E. 2d 794 ; cf. Shaw v. Barnard, 229 N.C. 713 , 51 S.E. 2d 295 . The opinions in the wrongful death cases arising out of the same accidents, this day filed, are clearly in accord with our decisions to which we adhere.

Combined text as published — syllabus, headnotes and all opinions in one document

66 S.E.2d 690 (1951) 234 N.C. 107

BARBER

v.

WOOTEN et al.

No. 21.

Supreme Court of North Carolina.

September 19, 1951.

*691 McMullan & Aydlett, Elizabeth City, for plaintiff, appellee.

Frank B. Aycock, Jr., Elizabeth City, for defendant Wooten, appellant.

J. Henry LeRoy, Elizabeth City, for defendant Layden, appellant.

John H. Hall, Elizabeth City, for defendant Scaff, appellant.

STACY, Chief Justice.

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

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

The rights of the defendants as against the plaintiff or as among themselves would not arise on demurrer unless made to appear on the face of the complaint, which is not the case here. G.S. § 1-240; Whiteman v. Seashore Transportation Co., 231 N.C. 701 , 58 S.E.2d 752 ; Tarkington v. Rock Hill Printing & Finishing Co., 250 N.C. 354 , 53 S.E.2d 269 , 11 A.L.R.2d 221 ; Butner v. Spease, 217 N.C. 82 , 6 S.E.2d 808 .

*692 The complaint appears sufficient to withstand the 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.

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

BARNHILL, Justice (concurring).

It does not appear on the face of the complaint that there was any appreciable interval of time between the three collisions. Hence, the question defendant seeks to raise is not presented by the demurrer. Hodgin v. North Carolina Public Service Corporation, 179 N.C. 449 , 102 S.E. 748 ; Hester v. Horton Motor Lines, 219 N.C. 743 , 14 S.E.2d 794 ; cf. Shaw v. Barnard, 229 N.C. 713 , 51 S.E.2d 295 . The opinions in the wrongful death cases arising out of the same accidents, this day filed, are clearly in accord with our decisions to which we adhere.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 18 cases

View all citing references →
1953: 41955: 21956: 11957: 11958: 11959: 11962: 11963: 11965: 21966: 11967: 21968: 119532026peak 1953 · 4

Relies on it most ⓘ

  1. Batts v. Faggart133 S.E.2d 504 (N.C. 1963)
  2. Hunsucker v. High Point Bending & Chair Co.75 S.E.2d 768 (N.C. 1953)
  3. Sale v. State Highway & Public Works Commission89 S.E.2d 290 (N.C. 1955)
  4. McKinney v. City of High Point74 S.E.2d 440 (N.C. 1953)
  5. Riddle v. Artis91 S.E.2d 894 (N.C. 1956)
  6. Tart v. Register125 S.E.2d 754 (N.C. 1962)

Most recent

  1. Lane v. Griswold159 S.E.2d 338 (N.C. 1968)
  2. Thorson v. City of Minot153 N.W.2d 764 (N.D. 1967)
  3. Mebane Lumber Co. v. Avery & Bullock Builders, Inc.154 S.E.2d 665 (N.C. 1967)
  4. Young v. Baltimore and Ohio Railroad Company146 S.E.2d 441 (N.C. 1966)
  5. Wise v. Vincent144 S.E.2d 877 (N.C. 1965)
  6. High Point Surplus Co. v. Pleasants139 S.E.2d 892 (N.C. 1965)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 14

DepthCaseCited by
Hester v. Horton Motor Lines, 14 S.E.2d 794 (N.C. 1941) 15
White v. Carolina Realty Co., 109 S.E. 564 (N.C. 1921) 52
Tarkington v. Printing Co., 53 S.E.2d 269 (N.C. 1949) 30
Shaw v. Barnard, 51 S.E.2d 295 (N.C. 1949) 23
West v. Collins Baking Co., 181 S.E. 551 (N.C. 1935) 10
Whiteman v. Seashore Transp. Co., 58 S.E.2d 752 (N.C. 1950) 8
Levins v. Vigne, 98 S.W.2d 737 (Mo. 1936) 5
Hodgin v. N.C. Pub. Serv. Corp., 102 S.E. 748 (N.C. 1920) 3
Butner v. Spease, 6 S.E.2d 808 (N.C. 1940) 94
Lewis v. Hunter, 504 S.E. 814 (N.C. 1937) 22
Atkins v. Steed, 179 S.E. 889 (N.C. 1935) 4
Southeastern Fire Ins. Co. v. Moore, 108 S.E.2d 618 (N.C. 1959) 3

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