#### MARCUS TYLER v. HILTON LUMBER COMPANY et al.

(Filed 18 March, 1914.)

Actions — Joint Tort Feasors — Pleadings—Surplusage.

Several defendants may be jointly sued for damages for the same tort arising from one and the same transaction, and where such a cause of action is sufficiently stated,' and the complaint further alleges the same tort as to each of the defendants, separately, these further counts will be treated as surplusage. The effect of judgments obtained against joint tort feasors in separate actions discussed by Walker, J.

*164Appeal by defendants from Whedbee, J., at tbe January Term, 1914, of DupliN.

Action for personal injuries caused by tbe negligence of defendants. Plaintiff sued both defendants, Hilton Lumber Company and Hilton Railroad and Logging Company, alleging that be was severely injured by tbe careless handling of logs by tbe servants of defendants, while loading one of their log cars, by tbe use of a skidder. There are three counts in tbe complaint: one against ther defendants jointly, as “owners and 'operators of. tbe railway”; tbe second against tbe Hilton Lumber Company alone for tbe same tort, and tbe third against tbe other company for tbe same tort, and tbe language of eacb count describing tbe tort is substantially identical. Defendants demurred upon tbe ground of a misjoinder both of parties and causes of action. Tbe demurrer was overruled,,J and tbe defendants appealed.

No counsel for plaintiff.

E. K. Bryan and II. D. Williams for defendants.

Walkek, J.,

after stating tbe case: Tbe case is a simple one. If we keep steadily in mind tbe fact tbat eacb count refers to tbe same tort, arising out of one and tbe same transaction, tbe case is relieved of any possible difficulty. This makes it appear clearly tbat there is no joinder of different causes of action against different defendants, but tbe statement of tbe same cause of action in different forms against tbe same defendants. There was no necessity for declaring upon tbe second and third counts, as tbe entire controversy can be settled upon tbe first. Tbe last two counts, therefore, are superfluous, and may be disregarded, as “tbe persons injured by joint tort feasors may sue and recover against all, any number, or only one of them. Tbe liability is joint and several. Indeed, be may bring different forms of action against'different participants — trespass against one, trover against another, and so on. Tbe law does not recognize degrees of culpability between wrongdoers, and will not apportion compensatory damages between them. ■ They are alike guilty and alike responsible.” Hale on Torts, p. 123. Tbe *165principle was tersely stated in White v. Preston, 15 S. W., 732, where it is said, “that any number of joint feasors may be joined in the same action for the same tort, but for different torts committed by different tort feasors separate actions must be brought.” Lord Kenyon thought, in Mitchell v. Tarbutt, 5 Term (Durnf. and East), 649, that it was settled upon authority, and especially in Boson v. Sandford, Skin., 278, Salk., 440, that a plaintiff, where the cause of action is ex delicto, may sue all or any of the parties, upon each of whom individually a separate trespass attaches, and it was immaterial whether the tort was committed by the defendant or his servant, under the rule qui facit per álium, facit per se, as the act of the agent is imputed to his principal. The same rule was applied to a statutory penalty which, though in form ex contractu, is founded in fact upon a tort. The liability is joint and several, and judgment may be entered against all of the defendants, or only against some, and in favor of others as to whom the proof has failed." Chaffee v. U. S., 85 U. S. (18 Wallace), 516; L. Ed., 908. See also S. M. Telephone Co. v. Buchanan, 62 S. E., 928, and Pirie v. Tvedt, 115 U. S., 41, cited in White v. R. R., 146 N. C., 340. So in our case, under the first cause of action, which is stated against the defendants jointly, the plaintiff may recover accordingly, or he may have judgment against only one of them. A joint judgment will enable him to proceed under his execution against both or either one, as he may elect, but he can- have only one satisfaction. When there are two separate suits for the same trespass or wrong, and judgment recovered in each, plaintiff-may elect, as it is said, de melioribus damnis, that is, he may choose, as between the judgments, to take the larger one, or to pursue the solvent party; but when either is satisfied, it discharges all, except, perhaps, as to costs. Hale on Torts, 192, 193, 194, where the subject is fully discussed and the difference between the old and the new rule stated. Knickerbocker v. Culver, 8 Cowen (N. Y.), 111.

It will be seen from this consideration of the law, as shown by the better authorities, that the plaintiff can have all the relief he seeks under his first cause, and by adding" the second *166and third counts be bas merely stated separately, and by repetition, tbe several liability of tbe defendants, wbicb, as tbe law views it, be bad already stated in tbe first count, as tbe first embraced fully tbe other two. There is no misjoinder of different causes, as there is but one cause in tbe first count, wbicb includes tbe others, and those, on tbe trial, may well be disregarded as surplusage. We can see from tbe entire scope of tbe complaint that but one cause of action was intended to be alleged, and that is one for tbe joint and several tort of tbe defendants, who are-alleged to be owners of tbe railway. We must give tbe pleading a liberal construction with a view to a trial upon tbe merits and tbe awarding of substantial justice, unimpeded by mere technicalities. Womack v. Carter, 160 N. C., 286. Tbe real issue is, Was tbe. plaintiff injured by tbe negligence of tbe defendants, either or both of them, as alleged in tbe complaint? If tbe case is so tried, there is no danger that defendants will be vexed by a multiplicity of suits or subjected, to unnecessary costs.

There was no misjoinder of different causes of action, or of different parties, and tbe court .was right in overruling tbe demurrer.

Affirmed.