# Smith v. Day > Oregon Supreme Court · April 29, 1901 · 39 Or. 531 URL: https://www.frixlaw.com/law-library/cases/6898680 ## Case - **Full name:** SMITH v. DAY - **Court:** Oregon Supreme Court - **Decided:** April 29, 1901 - **Citations:** 39 Or. 531; 64 P. 812; 1901 Ore. LEXIS 102 - **Precedential status:** Published - **Opinion:** On rehearing by Wolverton - **Judges:** Wolverton - **Cited by:** 24 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6898680 ## Opinion text Decided 16 August, 1901. On Rehearing. Mr. Justice Wolverton delivered the opinion. 4. This cause is upon a rehearing. We held on the first hearing that for the purpose of determining whether a demurrer to the complaint upon the ground that the action had not been commenced within the time limited by the Code was well taken it was competent for the court to take into consideration the indorsement of the sheriff upon the summons in determining when the action was commenced. The weight of judicial utterance seems, however, to be against this position, the view seeming to prevail that the inquiry must be confined to the face of the complaint: Smith v. Holmes, 19 N. Y. 271 ; Lambert v. Ensign Mfg. Co. 42 W. Va. 813 ( 26 S. E. 431 ); Zaegel v. Kuster, 51 Wis. 31 ( 7 N. W. 781 ); Smith v. City of Janesville, 52 Wis. 680 ( 9 N. W. 789 ) ; Benedix v. German Ins. Co. 78 Wis. 77 ( 47 N. W. 176 ). The doctrine of those cases seems highly technical, and does not appeal strongly to reason, but we feel constrained, in deference to precedent and the weight of authority, to recede from our former holding in that regard. 5. This renders it necessary to determine another feature of the case, and for that purpose a further statement is required. The navigation company had received the plaintiff as a passenger on board of one of its boats, engaging to safely carry him from The Dalles to Portland and return, for which transportation he paid $3.00. The defendants J. G-. and I. N. Day were engaged in *538 blasting rock in the bed of the Columbia River at the Cascade Locks, and, while the boat was lying at the wharf, they, through their agents and employees, set off a blast of giant powder, or other powerful explosive, by reason whereof fragments of rock were cast upon and through the roof of the boat’s cabin, whereby the plaintiff was struck and injured. It is alleged that the Days were negligent in exploding the blast, well knowing that the boat was lying at the wharf, having passengers on board; and that the navigation company was negligent in allowing the boat to be at the wharf, well knowing that it was the usual hour at which thp Days discharged their blasts. The demurrer interposed to the complaint assigned as a ground therefor, among others, that two causes of action were improperly united. The filing of a demurrer based upon the grounds that the court could not properly consider except upon the hypothesis that it had jurisdiction of the cause and the person must be treated as a general appearance, which waived all irregularities as to the service of the summons, and gave jurisdiction of the navigation company as effectually as if it had resided and been duly served in Multnomah County, where the action was begun; and this is the case, although it is stated in the demurrer that it was filed without intending to waive irregularity of service or want of jurisdiction : Belknap v. Charlton, 25 Or. 41 ( 34 Pac. 758 ). 6. It is so well settled that an action on contract can not be united with one arising ex delicto that it does not require a citation of authorities to support the proposition. Two or more tortfeasors may be sued jointly when they have all concurred by joint design or common act or negligence to produce the injury complained of; but where the parties have acted separately and independently of each other, without concert, or by common *539 purpose, although the injury may be a common result to which the acts of each contributed, their liability is not joint, and a joint recovery can not be had : 1 Sutherland, Dam. §§ 140, 141; Dahms v. Sears, 13 Or. 47 ( 11 Pac. 891 ); Cooper v. Blair, 14 Or. 255 ( 12 Pac. 370 ); Bard v. Yohn, 26 Pa. St. 482 ; Klauder v. McGrath, 35 Pal St. 128 ( 72 Am. Dec. 329 ); Little S. Nav. Co. v. Richard’s Admrs, 57 Pa. St. 142 ( 98 Am. Dec. 209 ); Williams v. Sheldon, 10 Wend. 654 . The act of negligence against the navigation company is not the same as that by which it is sought to make the other defendants liable. While the two acts have concurred in producing the injury for which the damages are sought, there was no concert of action, and no common intent or purpose is alleged. Each was acting independent one of the other; hence they did not incur a liability for which they could be jointly sued. So that, whether the cause of action set up against the navigation company may be said to be upon contract or tort, it is not one that could be united with the action against the other defendants. It is insisted, however, that the uniting of the two in one complaint amounts to nothing more than a misjoinder of parties, which can not be appropriately reached by a demurrer ; that, notwithstanding there may be a combining of incompatible causes, yet that there is a good cause stated against the navigation company ; and hence that the demurrer is not well taken. The joinder consists in uniting causes against independent parties not subject to a joint action. In Cooper v. Blair, 14 Or. 255 ( 12 Pac. 370 ), a nonsuit was granted, after the evidence had been submitted, because of a like misjoinder of actions, and this court held the ruling to be proper. So, in Tyler v. Trustees, 14 Or. 485 ( 13 Pac. 329 , — a case where causes arising on contract were united without a joint liability, — Mr. Justice Thayer, said : “If the evidence had shown a cause of action against each of *540 the respondents, it would have been the duty of the appellant’s counsel to have elected as to which of the parties he would claim against before the cause was submitted to the jury; otherwise he could not recover against either. And by failing to make such an election, where the liability against defendants is only several, the court might, I think, properly grant a nonsuit.” This reasoning would indicate that while the two incongruous causes remained’united there is not a valid cause for which judgment could be properly taken against either of the defendants. However this may be, Green v. Nunnemacher, 36 Wis. 50 , is exactly in point. The complaint stated a cause of action against Jacob and Herman Nunnemacher, another against Jacob and other defendants, and still another against Jacob alone. There was a demurrer assigning as one ground a misjoinder of causes of action, speaking to which the court said, “They are distinct, independent, and separate, and have been improperly united,” and sustained the demurrer. To the same purpose is Sanders v. Clason, 13 Minn. 379 ( Gil. 352 ), which was a union of causes arising ex contractu. In the light of these authorities, the demurrer to the complaint herein was properly sustained. The statement in the demurrer that one cause is founded upon contract and the other upon tort does not necessarily preclude the defendant from insisting that it was well taken because both, were upon tort. ' This leads to a result in accord with our former opinion, and the judgment will stand as then entered. Affirmed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6898680. Public record. Not legal advice.