It appears to me that the cardinal underlying issue made by the appeal herein has been misunderstood, and hence improperly decided upon inapplicable principles of law. I must, therefore, state the reasons for my dissent from the leading opinion.
The plaintiff with the most meticulous care, and in explicit language, charges a joint tort against the three defendants. He so alleges the facts as to show the close interrelation of the actions of each defendant leading to the resultant injury, of which the plaintiff complains. So specific is the relation of the manner in which the separate act of each defendant is interlocked with the act of each other defendant as to produce the resultant injury that one is reminded of the nursery rhyme of the "House that Jack Built."
That there might be no doubt that it was intended to charge and did charge all three of the defendants with joint torts which combined and concurred in producing one result which gave rise to one cause of action the plaintiff set out with studied reiteration the several acts of each defendant which made the chain of events on which he relied.
In Paragraph II of the complaint plaintiff alleges that the City of Greenville placed on the sidewalk on Douglas Avenue a water meter which stood about an inch and a half *Page 504 above the level of the sidewalk; that said meter was a part of the water system owned by the city by which, for gain, it furnished water to patrons outside the limits of the city; that the defendant J.H. Roe owned a lot, store building, and filling station at the junction of Douglas Avenue and Buncombe Road upon which he permitted the defendant Atlantic Refining Company to place on the sidewalk an iron pipe used to transfer gasoline from its trucks to the underground tanks operated by the defendant Roe; that the pipe stood about ten or twelve inches above the ground.
Here, then, are the successive acts of the defendants as stated by the plaintiff.
In Paragraph III of his complaint the plaintiff, with particularity, states that on a day named he was walking along Douglas Avenue, "struck his foot against the said watermeter and was hurled to the ground, striking his headagainst the said iron pipe, etc." (Italics mine.)
Can there be a doubt that plaintiff stated a chain of causes which he claims were necessary to produce the one result?
Further, to accentuate his intention to allege a chain of interlocking acts by the three defendants which produced the one result complained of, he states in Paragraph IV of his complaint the following: "That plaintiff's damages and injuries were the direct and proximate result of the willfulness, wantonness, carelessness and negligence of the defendants in the following particulars: (a) in the placing by the said City of Greenville of the said water meter * * * above the surface of the sidewalk, a much traveled public way; (b) in placing and permitting to be placed by the defendants, The Atlantic Refining Company, a corporation, and J.H. Roe, of the said iron pipe on said sidewalk; and (c) in allowing, causing and permitting said premises and sidewalk to be and remain in a condition dangerous to pedestrians," etc.
Here, again, are stated the consecutive links in the chain of acts which it is alleged led to the result. *Page 505
In order that all doubt of the nature and legal character of these co-ordinated events should be dispelled, the plaintiff takes special care to declare them himself in Paragraph V of his complaint in these words: "That said acts of the defendant, City of Greenville, combining and concurring with the said acts and delicts of its co-defendants, the Atlantic Refining Company and J.H. Roe, were the direct and proximate cause of plaintiff's injuries and damage, as above alleged."
No attempt is made to state a several cause of action against the "co-defendants." The able counsel for plaintiff knew that they could not declare in the same complaint as and for a joint and several cause. So much is conceded by the leading opinion. It follows then that plaintiff cannot recover, unless he proves one or more acts of negligence for which the defendants are jointly responsible, or responsible by combined acts which concur in bringing about the result, as a proximate cause.
If these postulates be admitted, as they must be, it is incontestible that in order to hold the defendants guilty of a joint negligence it must be proven, as alleged in the complaint, that the act of the city in placing the said water meter on the sidewalk, and the act of the refining company in placing the iron pipe on the sidewalk, and the act of Roe in permitting it to be done, combined, as a proximate cause, to produce the result. The plaintiff has so alleged and he is bound by his pleadings. Does it need the citation of authorities to sustain that position? I opine that none will be demanded.
On the trial of the case the City of Greenville was eliminated by demurrer.
At the conclusion of the plaintiff's testimony, a motion for a nonsuit was granted as to Roe; and he went out of the case, carrying with him all the charges of negligence, and leaving no act of his with which the act of the refining company could combine and concur as the proximate cause of the injury. Now with these two defendants eliminated *Page 506 from the case, the plaintiff did not amend his complaint to meet the changed conditions; he elected to stand on his complaint which alleged against the defendants as joint tort-feasors. He had the right to sue all or one of them, but he may not do so in one complaint. He must stand then on his complaint as against joint tort-feasors.
The predominant question for the determination of this Court made by the appeal is this; The plaintiff having planted his suit on a complaint which alleges a joint tort by three tort-feasors, and having alleged in his complaint a chain of separate acts of negligence by each of the defendants, which combine and concur in a chain, lead to a result which makes a single cause of action, and two of the defendants having been dismissed from the case, will the plaintiff be allowed to recover against the remaining tort-feasor in the same action? Incidentally, the question of proximate cause enters.
Let it be borne in mind that plaintiff has not alleged a joint and several cause of action.
It is submitted that the authorities cited by the leading opinion and relied upon by respondent's counsel do not apply to the facts of this case, and are not, therefore, authority in its decision. Many of them relate to cases which turn upon the doctrine of respondeat superior. Such issue does not arise in this appeal.
In the case of Martin v. Hines, 150 S.C. 210,147 S.E., 870, relied on by respondent, the complaint alleged that Hines and Bailey drove their automobile at an unlawful and reckless rate of speed in one direction, and Brown drove his unlawfully in the opposite direction; they collided and plaintiff was injured. The Circuit Judge charged the jury that if the collision was due solely to Hines' negligence, they should find against him alone; if it was due solely to Brown's negligence, they should find against him alone; if it was due to their joint negligence, they could find against both. The verdict was against Hines alone. *Page 507
The Supreme Court in sustaining the action of the lower Court did so on the ground that the complaint "did not bring the action on the theory of joint tort." Since there can be no doubt that the present action is one for "joint tort," that case is not authority in this. As stated in the argument of appellant's counsel, the case of Huggins v. A.C.L.R. Co., 158 S.C. 501, 155 S.E., 839, is decided by the mistaken application of facts, and announces no principle of law of controlling interest in this case.
The case of Settlemeyer v. So. Ry. — Carolina Division, 91 S.C. 147,74 S.E., 137, is quoted in the leading opinion as authority for this utterance: "There may be a recovery upon evidence tending to show that an injury was caused by the negligence alleged in the complaint operating as a proximate cause in conjunction with another independent proximate cause not alleged."
Admitted; but what application has that pronouncement to the facts of this case? The following principle announced in the Settlemeyer case has more applicability to the present case: "The complaint contains no allegation of negligence against the defendant with respect to the noise made by the rabbits, and, if the evidence had shown that the horse was frightened by that alone, the case would have failed; for a plaintiff cannot recover on proof that he was injured by an act of negligence by the defendant not charged in the complaint."
In the present case the plaintiff has declared on an act of negligence by the city — the placing of the water meter; on an act of negligence by the refining company in the placing of the iron pipe, and an act of negligence on the part of Roe in consenting thereto. It cannot be denied that it is the fact that plaintiff stumped his toe on the water meter and fell on the iron pipe; there can be no doubt that that was the prime and proximate cause of plaintiff's fall. The proximate act. But the Court has said there is no cause of action against the city; hence no negligence in placing the *Page 508 water meter; that there is no cause of action against Roe for permitting the refining company to place the iron pipe.
It cannot be contended that the iron pipe was alone the proximate cause of the accident; but if it were so contended, the plaintiff, in order to come within the statement quoted from the Settlemeyer case, supra, must show proof of another act of negligence, named or not named in the complaint, as a proximate cause. Where is such proof? It is nonexistent.
It is stated in argument that the Circuit Judge in overruling the motion for nonsuit and directed verdict relied on the case of Rhodes v. So. Ry. Co., 139 S.C. 139,137 S.E., 434, and it is cited by respondent's counsel.
That is a case of master and servant, in which the doctrine of respondent superior applies. The verdict exonerated the engineer of negligence and found against the railroad alone. The verdict was allowed to stand because the complaint alleged other acts of negligence on the part of the railroad.
The leading opinion quotes in support of its position from the case of Correll v. City of Spartanburg, 169 S.C. 403,413, 169 S.E., 84, 88, the following: "So that where several causes combined to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that his negligence is an efficient cause, without which the injury would not have resulted, to as great an extent, and that such other cause is not attributable to the person injured."
A mere excerpt from an opinion rarely conveys a correct comprehension of the case from which it is taken. In theCorrell case there was but one defendant, and one cause of action, which, it was alleged, arose through several acts of negligence of the city in and about the work on its streets. The opinion holds that it was not necessary to prove all of the alleged acts of negligence; if any one was proved to be the efficient cause, it was sufficient. The defendant contended that Correll died of a duodenal ulcer; the plaintiff *Page 509 contended that the condition of the ulcer was aggravated by the fall and this resulted in Mr. Correll's death. This Court said: "In order to hold defendant liable, it was not necessary to prove that the fall was the only cause of the death. If it was a contributory proximate cause, it was sufficient."
Then followed the language quoted in the main opinion in this case. It is a correct statement of the law and applicable to the facts of the case then under consideration by the Court.
In the present case the facts pleaded, if true, make but one cause of action growing out of a chain of events, viz., the placing by the city of the water meter; the placing by the refining company of the iron pipe, and Roe's consent thereto. It took all of these to make the one cause of action. It is just as if three bricks were set up on end in a row. Brick No. 1 fell against brick No. 2 which in turn fell against brick No. 3, which fell on a person and injured him. There would have been no injury if the first brick had not fallen.
This principle is recognized in the case of Pendleton v.Cola. Ry., G. E. Co. et al., 132 S.C. 507, 128 S.E., 711,712: "If a complaint contains separate and independent acts of negligence on the part of two or more tort-feasors, capable severally of producing the result complained of, coupled with the allegation of joint negligence on the part of all of the defendants, whether stated in separate causes of action or in `jumbled' form, the defendant has the right to require the plaintiff to elect upon which cause of action he will rely, upon the principle announced in McKenzie v. RailwayCo., 113 S.C. 453, 102 S.E., 514, that joint tort-feasorscannot be sued both separately and jointly. But if the complaintsimply alleges co-operating causes leading to the result,instead of several causes each sufficient of itself to producethe result, such acts constitute but a single cause ofaction." (Italics added.)
The Pendleton case came on for hearing again before this Court on appeal from an order of the Circuit Court refusing *Page 510 to require the plaintiff to make his complaint more definite and certain and to require him to elect upon which cause he would proceed. 133 S.C. 326, 131 S.E., 265, 267. It appears that the plaintiff was discharged from the street car in the middle of a block, in a much traveled street, where he was struck by an automobile driven by the defendant Dicks; the complaint alleged injuries caused by the several named acts of the railway company, and the several named acts of Dicks; that these "joint and concurrent" acts of negligence of the defendants were the proximate cause of the plaintiff's injury. This Court said:
"`If the injured party chooses to sue the wrongdoers jointly, he thereby declares that the tort shall be joint, and the law so regards it, without listening to or even hearingfrom the wrongdoer.' * * *
"The plaintiff expressly alleges that the separate acts of negligence attributed to each of the defendants concurred and cooperated to produce the result — the injury complained of. Having elected to sue the two defendants in one action,and having alleged that the acts of each concurred in causinghis injury — the only theory upon which he was entitledto sue both in one action — he must recover, if at all, uponthe theory of joint liability, and not upon that of separatecauses of action predicated upon the several liability of thetwo defendants." (Italics added.)
It is confidently urged that the facts of this present case bring it exactly within the pronounced principles of thePendleton case; and the city of Greenville and Roe having been absolved of liability and dismissed from the case, from which action there is no appeal, the finding against the Atlantic Refining Company alone should not be allowed to stand.
The findings announced in the Pendleton case are expressly affirmed by this Court in the case of Bridge v. OrangeCrush Bottlers et al., 164 S.C. 351, 162 S.E., 325, 327. The plaintiff in that case was an employee of Orange Crush Bottlers at their bottling plant in Walterboro, Colleton County, *Page 511 S.C. as a bottle filler. He was injured by the explosion of a bottle. The bottles were made by the Laurens Glass Works, Inc., situate at Laurens, Laurens County, S.C. The complaint alleged negligence of the glass works in the manufacture of the bottle and negligence in inspecting it; it alleged negligence on the part of Orange Crush Bottlers in the inspection of the bottle; and that these acts of negligence of the two defendants "combined and co-operated to cause plaintiff's injury as the proximate cause thereof." On circuit the defendants took the position that the allegations did not show "a joint and concurrent liability of the two defendants." The Circuit Judge held: "There is but one cause of action set forth in the complaint; that is, an action charging both defendants with joint and concurrent negligence, as the proximate cause of the injury."
This ruling was affirmed on appeal.
In the case of Tate v. Claussen-Lawrence ConstructionCompany Gulf Refining Company, 168 S.C. 481,167 S.E., 826, 830, the complaint alleged that the construction company was engaged in constructing a highway; that at the intersection of a street and a road, where it suspended work after sundown, it placed a lighted flambeau, the flame of which was not protected or covered; that it was placed within twelve or fifteen feet of a filling station; that the agent of the other defendant, Gulf Refining Company, after the placing of the flambeau, arrived at the filling station with his truck of gasoline for the purpose of filling the underground tanks. In the process of transferring the gasoline from the truck to the tanks, some of the gasoline was spilled and was ignited by the flame from the flambeau, and the filling station was burned. The verdict was against both defendants, and was affirmed on appeal. The Court said: "It is patent from the evidence that it was the combined, concurring negligence of the two defendants which operated as the proximate cause of the injury. If the flambeau had not been placed where it was the explosion would not have occurred. Even with the flambeau there, there *Page 512 would have been no explosion but for the negligence of the man who was delivering the gasoline in the tank."
This ruling is sustained upon the authority of the Bridge and Pendleton cases, supra.
Reliance is placed by the respondent on the opinion of this Court in the case of Halsey v. Minnesota-South CarolinaLand Timber Co., 174 S.C. 97, 177 S.E., 29, 38. As stated hereinabove, one rarely gets a correct conception of the principles declared by a Court by a mere excerpt from the opinion. In the Halsey case the suit was originally brought against the land and timber company and Montague. Before the case finally came to trial in the State Court, Montague died, and it was held that as to him the case was abated. Thereupon the land and timber company moved to transfer the case to the Federal Court on the ground that Montague, the local defendant, was dead and the company was a foreign corporation. It was a question of jurisdiction. Judge Cochran of the Federal Court (D.C.), 54 F.2d 933, 935, in denying the motion to transfer the case to his Court, said: "Here the plaintiff began his case in the State Court in good faith. * * * He has pressed his case to trial against both defendants in the lower Court, and has carried it against both of them by appeal to the Supreme Court. Hehad no part in changing the status of the case; that has beenforced upon him in invitum by the death of the party andthe law which declares that the case as to that party shallnot survive. He is not to be deprived of his right to continuein the State Court because of events over which he hadno control whatever." (Italics added.)
When this decision came down from the Federal Court, the land and timber company moved to transfer the case from Charleston County, where Montague had had his residence, to Dorchester County, where the company had its office. The question of jurisdiction was still the issue. The motion was denied. On appeal this Court said that after onceacquiring "jurisdiction of the person and subject-matter, thedeath, removal from the county or resignation from office *Page 513 * * * will not abate the suit, and the Court willhave power * * * to proceed to final judgment or decree." (Italics added.)
Moreover, the allegations and facts proven show conduct on the part of the timber company, in addition to that of Montague, which made the action one of joint and several liability.
Construed in the light of these conditions, the case is not authority for the case at bar.
There the case was abated by the death of Montague after jurisdiction acquired. A circumstance beyond plaintiff's power to prevent. In the present case, the City of Greenville and Roe were dismissed from the case, with the tacit assent of plaintiff's counsel, in a suit on a joint and concurrent cause of action, the evidence as well as the allegations in which show that the negligence complained of were a combined and cooperating chain of separate acts by three defendants resulting in one cause, and shows that the chain was broken.
When two of these joint tort-feasors are relieved of liability, and it is patent that the act of the remaining defendant was not the proximate cause of the injury of which plaintiff complains, it seems wholly illogical to say that such action can be sustained.
It seems wholly unnecessary to argue that if the allegations of the complaint are true, the fall of plaintiff was the beginning of the chain of events which led to his injury. Therefore, if he can recover, he must continue that chain unbroken because of the fact that he is suing all three of the defendants as joint tort-feasors.
The defendant who placed the water meter is out of the case, the iron pipe placed by the refining company had no part in causing the plaintiff to fall; without the fall the pipe would not have harmed him. Again, according to the allegations of the complaint, the iron pipe was placed on the sidewalk with the consent of the defendant Roe; that is to say, Roe owned and controlled the premises and his consent was *Page 514 necessary to be had in order to place the pipe. The charge is explicit and in one sentence that the Atlantic Refining Company and J.H. Roe combined in placing the iron pipe. See folio 15 of the record. But Roe has been relieved of such charge of negligence and dismissed from the case.
It appears then that the plaintiff has been permitted to recover against the Atlantic Refining Company alone as if in a several action on a several liability against whom no several act of negligence is alleged, nor is any proved as the proximate cause of plaintiff's injury. Whereas the action was one against three alleged joint tort-feasors on allegations of separate acts of negligence which lead in a chain from the first act to the last, and thus combine and cooperate in causing the injury to plaintiff.
If this judgment stands, the principle of pleading that one must stand or fall by his pleadings is completely nullified.
I think the judgment should be reversed.