Smith v. McDowell Furniture Co.

BaeNhill, J. The motion to remove is based on the allegation of diversity of citizenship and separable controversy. The diversity of *157 citizenship is not controverted. Does the complaint state a separable cause of action? This is the primary question presented. The test of separability lies in the complaint and the cause of action therein stated. If the cause of action, as stated, is not separable the motion must be denied. Lackey v. R. R., 219 N. C., 195; Burleson v. Snipes, 211 N. C., 396, 190 S. E., 220; Rucker v. Snider Bros., Inc., 210 N. C., 777, 188 S. E., 405; Trust Co. v. R. R., 209 N. C., 304, 183 S. E., 620; Hood v. Richardson, 208 N. C., 321, 180 S. E., 706; New berry v. Fertilizer Co., 202 N. C., 416, 163 S. E., 116; Brown v. R. R., 204 N. C., 25, 167 S. E., 409; Fenner v. Cedar Works, 191 N. C., 207, 131 S. E., 625; Timber Co. v. Ins. Co., 190 N. C., 801, 130 S. E., 864. • A plaintiff may sue joint tort-feasors in one action and he has the right to have the cause tried as for a joint tort, and in such case no separable controversy exists. White v. R. R., 146 N. C., 340; Crisp v. Lumber Co., 189 N. C., 733, 128 S. E., 146; R. R. v. Miller, 217 U. S., 209; R. R. v. Thompson, 200 U. S., 206. “Defendant has no right to say that an action shall be several which a plaintiff elects to make joint.” Powers v. R. R. Co., 169 U. S., 92, 42 L. Ed., 673; Crisp v. Lumber Co., supra. In law the term “joint tort-feasors” includes those who commit separate wrongs without concert of action or unity of purpose, when the separate wrongs are concurrent as to time and place and unite in setting in operation a single, dangerous and'destructive force which produces a single and indivisible injury. Bost v. Metcalfe, 219 N. C., 607; Moses v. Morganton, 192 N. C., 102, 133 S. E., 421; Rucker v. Snider Bros., supra, 26 R. C. L., 746; Cooley on Torts (3rd), 246. The well established and familiar rule that a plaintiff may consistently and properly join as defendants in one complaint several joint tort-feasors applies where different persons, by related and concurring acts, have united in producing a single or common result upon which the action is based. Bost v. Metcalfe, supra; Rucker v. Snider Bros., supra. Applying these principles to the facts alleged in the complaint we concur in the conclusion of the court below that the complaint does not allege a separable cause of action. Under the allegations of the complaint neither act alone caused the injury complained of. It was the concurrence of such acts in time and place which inflicted a single and indivisible injury. If the plaintiff prevails the liability of the defendants cannot be apportioned. Each is liable for all the resulting injuries. As in no event is the cause removable, we need not discuss other questions presented. The judgment below is Affirmed.