Bullock v London General Omnibus Company
| Jurisdiction | England & Wales |
| Date | 1907 |
| Year | 1907 |
| Court | Court of Appeal |
Practice - Joinder of Causes of Action - Action of Tort - Allegation of Joint Tort - Alternative Allegation of separate Torts - Costs - Costs against Plaintiff of successful Defendant - Addition to Costs recoverable from unsuccessful Defendant - Order XVI., rr. 4, 7.
The plaintiff was injured by a collision between two vehicles, and brought an action against the respective owners. The statement of claim alleged that the injury to the plaintiff was caused by the joint negligence of the two defendants, and it also alleged in the alternative negligence on the part of each defendant causing the injury. No application was made to strike out either of the defendants, and the case went to trial. The jury found negligence on the part of the defendant first named on the record, and negatived negligence on the part of the other defendant. The judge entered judgment for the plaintiff against the first-named defendant and judgment for the successful defendant, with costs in each case. The judge further ordered that the costs so payable by the plaintiff should be included in the costs recoverable from the first-named defendant. On appeal:—
Held, that after verdict and judgment it was too late to object to the jurisdiction to try the action on the ground that torts were alleged severally against the two defendants.
Held, also, that in an action of tort tried with a jury, in which relief is claimed against two or more defendants in the alternative, there is jurisdiction to direct that costs payable to a successful defendant should be included in the costs recoverable by the plaintiff from an unsuccessful defendant.
Per curiam: After the alteration of r. 1 of Order XVI., following on the decision in Smurthwaite v. Hannay, [
APPEAL from the judgment of Bray J. at the trial of the action with a jury.
The action was brought to recover damages for injuries sustained by the plaintiff through a collision between an omnibus and a cart. The omnibus belonged to the first-named defendants, the London General Omnibus Company, and the cart to the other defendants, George Trollope & Sons and Colls & Sons, Limited. The statement of claim alleged that the plaintiff had suffered personal injuries by the joint negligence of both of the defendant companies, and, alternatively, that she had suffered such injuries by the separate negligence of each of these companies. Particulars were given in the statement of claim of the negligence attributed to the omnibus company, and also of that attributed to the other defendant company.
The material part of defence of the omnibus company was a denial of the allegation of negligence on their part, either jointly with the other defendants as alleged, or separately. In the particulars they stated that the driver of the cart belonging to the other defendant company was not keeping a proper look-out, and that, so far as the omnibus company were concerned, the collision was inevitable.
The defence of the other defendant company was a denial of negligence on their part and an assertion that the collision was caused by the negligence of the omnibus company.
At the trial the jury found a verdict for the plaintiff for 150l. against the omnibus company, and a verdict for the other defendant company.
Application was made on behalf of the plaintiff that the costs payable by her to the successful defendants should be added to the costs which the omnibus company were ordered to pay to her, and the judgment as finally drawn up contained the following clause: “It is adjudged that the plaintiff recover against the defendants the London General Omnibus Company, Limited, 150l. damages and her costs of this action to be taxed, such costs to include all costs incurred against the London General Omnibus Company, Limited, by reason of there being two defendants, and further the costs she may have to pay the defendants George Trollope & Sons and Colls & Sons, Limited.”
The London General Omnibus Company appealed.
McCall, K.C., and Ernest Charles, in support of the appeal. The learned judge, in making the order as to costs, purported to act under Order XVI. and the authority of the case of Sanderson v. Blyth Theatre Co.F1 The order relates solely to the joinder of parties, and has no application to the joinder of causes of action, which is dealt with in Order XVIII. In this case two independent causes of action in tort against two defendants, with particulars in each case, have been joined in one action. There is no authority for this in the rules or in decided cases. The allegation of a joint tort against the two defendants does not assist the plaintiff, as is clear from the opinion of Lord Halsbury in Sadler v. Great Western Ry. Co.F2, who said: “But if it were true that the fifth paragraph sets out a joint cause of action, which I do not think it does, that would not make the case any the better for the plaintiff, because upon that hypothesis he would have joined several causes of action in one count with a joint cause of action in another count which would be equally objectionable.” Other authorities against the joinder of separate causes of action in tort against different defendants are Gower v. CouldridgeF3, Thompson v. London County CouncilF4, and Frankenburg v. Great Horseless Carriage Co.F5, though in the last-mentioned case, in an action against a company and its directors, the joinder was held to be right because there was only one cause of action, namely, the improper issue of a prospectus. Even if the...
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