Cameron & Poulos v. Lockhart
Cameron & Poulos v. Lockhart
Opinion of the Court
delivered the opinion of the court.
Don Lockhart brought suit in the District Court of Albany County, Wyoming, against E. E. Cameron and George Poulos, claiming damages growing out of an automobile collision. According to the amended petition, Lockhart, Cameron, and Poulos were all driving in the same direction on the highway when Cameron negligently drove into the rear of Lockhart’s car and Poulos then drove into the rear of Cameron’s car, causing it to again collide with plaintiff’s automobile with the resultant damage. Poulos was served with summons in Albany County; and when Cameron was served in Laramie County, he appeared specially, moving to quash the service because the petition did not state facts sufficient to warrant service in Laramie County. The motion was denied and on trial the court found for plaintiff and against both defendants. From the resulting judgment Cameron has appealed, urging that the petition could have been served on him in
The judgment against Cameron depends upon the propriety of service of summons in a county other than that in which the action was brought. Service is governed largely by statute, and defendant Cameron says that the applicable statutes are as follows: §§ 3-613, 3-614, 3-808, 3-1005, W.C.S.1945.
The case of Harrison v. Carbon Timber Co., 14 Wyo. 246, 83 P. 215, has been quoted to us as discussing the statute which was the predecessor of and identical with § 3-1005.
On the first phase of the question, it is not a simple matter to say categorically when there has been an allegation that the defendants are “joint tort-feasors” since these words have been used with different connotations. 35 Ky.L.J. 159; Prosser on Torts, 2d ed., p. 233. However, in this case it is unnecessary to delve into the meanings of these words or their proper application since we have previously held in a case not dissimilar in facts to the one at bar that:
“ ‘Where a chain of events has been started, due to the negligence of the driver of an automobile, he may be held liable for all mishaps which are properly the proximate result of his improper conduct.’ * * *” Tyler v. Jensen, 75 Wyo. 249, 295 P.2d 742, 745.
See to the same general effect Prosser on Torts, 2d ed., p. 237. See also Owens v. Cerullo, 9 N.J.Misc. 776, 155 A. 759; Ristan v. Frantzen, 14 N.J. 455, 102 A.2d 614; Osinski v. Benson, 323 Ill. App. 562, 56 N.E. 2d 665. And see 5A Blashfield, Cyclopedia of Automobile Law and Practice, perm.ed. 1954, § 3151; 7-8 Huddy, Cyclopedia of Automobile Law, 9th ed., § 150.
Although plaintiff has not filed a brief herein he has submitted certain citations by letter which along with other research material have been given consideration. It is interesting to analyze the cases on which each of the parties rely. For instance, plaintiff says that the case of Harrison v. Carbon Timber Co., supra, determines the matter by the statement at 83 P. 217 that:
*193 “* * * An individual cannot be sued in a county where he does not reside or cannot be summoned if sued alone; but when the action is rightly brought against him jointly with another in a county other than that of his residence, a summons may issue to and be served upon him in the county where he resides, and jurisdiction of his person be thus obtained; and we can see no good reason why the same rule should not apply to a corporation where it is a joint defendant. The only reason suggested in argument of counsel, other than that claimed under section 3500, is inconvenience; but we are unable to discover wherein a corporation would be more inconvenienced in such a case than an individual.
“The construction we have placed upon sections 3500, 3505, and 3510 gives force and effect to each, and does violence to neither. We are of the opinion, therefore, that under the allegations of the petition the action was rightly brought in Albany county. We do not wish to be understood, however, as holding that by merely making a party a nominal defendant it would authorize the bringing of an action against a corporation or an individual resident in another county.”
This we doubt because the effect of the quoted portion is that summons may issue to another county than that in which the action is brought if the defendants are “joint tort-feasors.” Reliance upon the Harrison case or upon Cassity v. Brady, 182 Kan. 381, 321 P.2d 171, cited by plaintiff, would be to assume that Lockhart charges Cameron and Poulos as joint tort-feasors. Since this is a point in issue, we cannot make any such supposition.
Defendant Cameron admits that if the amended petition charges joint liability against the two defendants that on the authority of Harrison v. Carbon Timber Co., supra, and Maloney v. Callahan, 127 Ohio St. 387, 188 N.E. 656, the action was properly brought in Albany County and summons might have properly
Accordingly, we scrutinize the petition to determine what the allegations really were and find that after reciting plaintiff’s ownership and driving on the highway it states:
“* * * Cameron * * * was following immediately behind the plaintiff; * * * Poulos * * * was following immediately behind defendant Cameron.
“* * * Cameron negligently drove * * * into the rear of plaintiff’s car; * * * at said time and place * * * Poulos negligently drove * * * into the rear of defendant Cameron’s car and that as a result defendant Cameron’s car again collided with plaintiff’s automobile causing further damage in the total sum of $421.-99.
‡ ‡ $
“* * * Plaintiff was deprived the use of said automobile for 10 days the reasonable value of which is $50.00.* * *”
It must be conceded that the petition is not artfully drawn, that the drafter must have considered that some damage accrued from the first impact between Cameron’s car and that of plaintiff’s else he would not have used the terms “further damage” and “total sum”; and there is no employment of the terms of joint liability, joint tort-feasors, or the like. But a fair analysis of the charge (not considering the first striking of Lockhart by Cameron on which no reliance is placed as to damage) seems to us to be that Cameron was driving his automobile negligently, was followed by Poulos who, driving negligently, struck Cameron, who in turn struck plaintiff, causing the single amount of damage claimed and for which judgment was given.
Defendant Cameron seeks to avoid the force of the holding in Tyler v. Jensen, supra, by arguing that the facts relating to the collision in that case were dissimilar to those in the matter before us. However, we think the decision in the Tyler case was broader than counsel now concedes, for we said in effect that a driver of a motor vehicle may be held liable for all mishaps which are the proximate result of his wrongful conduct, even though there are separate and distinct collisions. In the present case according to the allegation of plaintiff the negligent acts of Poulos and Cameron were simultaneous and produced one result. The instant situation falls within the Tyler rule.
Although this case might thus be determined on the question of the potential joint liability of the two de
“* * * the question is not whether defendant Tolley and the other defendants were charged by the petition with commission of a joint tort but whether the allegations of the petition were such as to withstand a demurrer on the ground of misjoinder of defendants. If those allegations were such as to indicate that each of the defendants was a proper party and that some could be summoned in Mahoning county, the allegations of the petition would indicate, within the meaning of Section 11282, General Code, an ‘action * * * rightly brought in’ Mahoning county against those who could be and were summoned therein; and would further indicate authority under that statute for issu-*197 anee of summons, to Licking county against defendant Tolley.”
Moreover, defendant Cameron overlooks the amending of § 3480, R.S. 1899,
Affirmed.
In Carpenter v. Traver, 22 Ohio App. 249, 153 N.E. 520, the Ohio court discussing the prototypes of §§ 3-808 and 3-1005, W.C.S.1945, said that where a party properly pleaded a joint tort against two defendants, the first a resident of the county where suit was brought and the second a resident of another county, the service of summons was regularly made in the second county.
Identical with § 5006, R.S.O. (§ 11255, O. Gen. Code, effective at the time of the Maloney opinion).
Identical with § 5005, R.S.O. (§ 11254, O. Gen. Code, effective at the time of the Maloney opinion).
See generally 2 Bancroft’s Code Practice and Remedies, 1927, p. 1212, and cases cited at notes 9 and 10 and at note 8 of the ten-year supplement (2 Bancroft’s Code Pleading, Practice and Remedies, 1937, p. 1747). Cf. 2 Barron and Holtzoff, Federal Practice and Procedure, rules ed. 1950, pp. 101-118.
Concurring Opinion
Opinion of
concurring.
I concur in the affirmance. I do not agree that in a case of this kind valid service of summons can be made outside the county wherein the action is brought. This action is not one of those mentioned in Chapter V of Division II of the Code of Civil Procedure, Session Laws of Wyoming, 1886, which is the chapter referred to in § 3-1005, W.C.S. 1945, and by which its provisions are limited. Consequently, service of the summons in this case was not within the authority of that statute. However, appellant confines his objection to the court’s jurisdiction to the question of whether he was or was not a joint tort-feasor. This is a tacit acceptance of the court’s jurisdiction if his views on
Reference
- Full Case Name
- E. E. CAMERON, Appellant (Defendant Below) and GEORGE POULOS, (Defendant Below) vs. DON LOCKHART, Appellee (Plaintiff Below)
- Cited By
- 2 cases
- Status
- Published