This is a personal injury case growing out of an automobile accident brought in the first instance by Arthur R. McNamara on his own behalf and for the use of the Royal Indemnity Company against Morton Brotman, trading as the Diamond Cab Company, by which trade name he will be hereinafter referred to. The Cab Company, acting under the provisions of Chapter 344 of the Acts of 1941, which adds nine new sections to Article 50 of the Annotated Code, under the new subtitle "Joint Tortfeasors," moved that the owners and drivers of two other automobiles involved in the same accident be made third-party defendants. Under the authority of an order signed on this motion, a third-party plaintiff suit was *Page 230 thereupon filed by the Cab Company against these other defendants, namely, Merrill Eppes and Benjamin and Jacob Levin. General issue pleas were filed by all the third-party defendants. The original plaintiff made no amendment to his declaration "to assert against the third-party defendant any claim which the plaintiff might have asserted against the third-party defendant had he been joined originally as a defendant" as provided by the Act.
At the conclusion of the entire case, the court granted prayers for instructed verdicts in favor of the third-party defendants and refused a similar motion by the Cab Company. There was a verdict in favor of the plaintiff against the Cab Company, and the latter filed a motion for judgment N.O.V. and for a new trial. These were denied and judgment was entered against the Cab Company. Appeals were taken here by the Cab Company from the judgment against it, from the judgment in favor of the Levins, codefendants, and from the judgment in favor of Eppes, codefendant.
The court below, in granting the motions for instructed verdict in favor of Eppes and the Levins, makes the following correct statement of the law: "I have concluded that in order for the defendants Eppes and Levin to be held in the case, even though there may have been negligence on the part of such defendants, some violations of the rules of the road or something like that, yet if that negligence which they may have committed were not the proximate or the procuring cause of this accident, these defendants are not liable." In discussing the testimony, however, the court referred to the testimony of the plaintiff that he was able to and did stop before he had come to the rear of Eppes' car, and for that reason, he did not think the plaintiff could recover as against either the defendant Eppes or the defendants Levin, and he said: "I rule that on the plaintiff's own testimony those named defendants were not involved in the second accident or series of accidents which subsequently happened. For that reason, gentlemen, I am directing the verdict at this time, directing that you bring in a verdict in this *Page 231 case in favor of the defendants Eppes and Levin." The appellant claims, and these quotations seem to bear out his contention, that the trial court ruled because the plaintiff did not implicate the two third-party defendants, no recovery could be had against them, no matter what other testimony was produced implicating them. He further claims that there was testimony in the case sufficient to take it to the jury as against these defendants, and that he, as the original defendant and third-party plaintiff, is entitled to have the jury pass upon their liability to the plaintiff as well as his.
The first question, therefore, is what evidence is there against the third-party defendants to show that they were negligent and that their negligence directly contributed to the injury to the plaintiff. The facts in the case seem to be that all of the parties were on the right-hand side of Park Heights Avenue and the Levin truck was pulling out from the curb. The Eppes car struck it on the side. The McNamara car struck the Eppes car in the rear and the cab struck the McNamara car in the rear. The claim of McNamara was that after the Eppes car hit the Levin truck he stopped and the cab hit him in the rear driving him into the Eppes car, so that there were really, according to his testimony, two accidents. The testimony of Levin, however, contradicted McNamara's testimony and said that Eppes ran into him when he had plenty of room to get by, and that McNamara struck Eppes before the cab struck McNamara. Eppes' testimony implicates Levin in that he says the latter pulled out without warning before he had time to swerve. He also contradicts McNamara and states that the latter struck him before the cab struck McNamara. This court has held that in an accident involving several parties, the question of whose negligence was directly contributory to the injury should be left to the jury. This would seem to be an appropriate case for the adoption of that principle.
There does not seem to be any doubt that under the joint tortfeasors law the intention is to have the jury *Page 232 pass upon the liabilities of all parties in one case. If the plaintiff does not put them all in, the defendant can do so, and in such case the same result will be reached as if the added parties had originally been made defendants. The fact that the plaintiff did not then amend his declaration cannot prejudice the rights of the defendants to have the others in. No point was made of this in the case. The trial court was apparently confused by the idea that since the plaintiff himself did not claim that Eppes and Levin were negligent, he could not recover against them. That would be sound, were it not for the right of the defendant to have contribution provided by the Act, and his consequent right to have them kept in the case if any evidence was produced that they were guilty of negligence directly contributing to the accident. There seems to be such evidence.
The Act of 1941, Chapter 344, does require that in case that third-party defendants are made on motion of the original defendant "The plaintiff shall amend his pleadings to assert against the third-party defendant any claim which the plaintiff might have asserted against the third-party defendant had he been joined originally as a defendant." This was not done in this case and no motion was made to require it to be done. There may be some question whether in case of a verdict against a third-party defendant in such a case a judgment could be entered on behalf of the plaintiff, inasmuch as he did not sue such third-party defendant. The better view seems to be, however, that inasmuch as the original defendant has the right to join the other defendants, judgments should be entered against all defendants against whom verdicts are returned. The original plaintiff is bound by the Act to accept these other defendants as parties to the case, and therefore is entitled to judgments against them in a proper case, whether or not he amends his declaration. It would be better practice to follow the Act and amend the declaration, but if no objection is made, and the parties all go to trial on the original declaration and the declaration of the third-party *Page 233 plaintiff, any right by anyone to have the original declaration amended has been waived.
It might be contended that as between the original plaintiff and defendant the issue has been determined by the jury on all the evidence, and therefore the judgment as to the original defendant should not be reversed. This would leave him in a position where he might have to pay the judgment, and then to try the case against the other two defendants. This would obviously prejudice his rights, and would be exactly what the statute is designed to prevent, namely, a multiplicity of suits. Courts cannot close their eyes to the fact that the situation is entirely different where a jury is considering a claim against three parties, and where it is considering the claim against one party after the court has dismissed the case as to the other two. In the last case, the jury, if it feels the plaintiff was injured, has only one defendant against whom it can find. Human nature is apt to react in such a way that the injured man will be given something to be collected from this defendant, when, if the other two were in, he might be absolved entirely and one or both of the others held responsible.
There is, in my opinion, enough evidence of negligence on the part of Eppes and the Levins to take the case to the jury against them. As this was not done, the appellant has been damaged because he is entitled to have the jury consider the evidence against all three defendants in one case. For these reasons, I think the judgment against the appellant and the judgments in favor of the two third-party defendants should all be reversed and a new trial awarded in which the jury could consider the liability of all of the parties.
BOND, C.J., concurs in the dissenting opinion. *Page 234