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Smith v. Red Top Taxicab Corp.

Decided: October 16, 1933.

ELIZABETH SMITH, PLAINTIFF-RESPONDENT,
v.
RED TOP TAXICAB CORPORATION AND ARTHUR WHOLER, DEFENDANTS-APPELLANTS



On appeals from judgments of the Supreme Court.

For the appellant, William E. Holmwood (Frank J. Brunette, Jr., on the brief).

For the respondent, William L. Greenbaum and Isadore Zuckerman.

Heher

The opinion of the court was delivered by

HEHER, J. Plaintiff-respondent suffered personal injuries as the result, it is claimed, of the negligent operation of a motor vehicle, owned by the corporate defendant, and driven by its servant and co-defendant, Wholer. To recover the consequent damages, she brought two actions in the First District Court of the city of Newark. In each she demanded damages in the sum of $500. In one she alleged bodily injuries, with resultant "pain and mental anguish." In the other she averred that, as a consequence of the bodily injuries, she was compelled to "hire the services of a physician and purchase medicines in an endeavor to" effect a cure of her injuries, and, additionally, suffered a loss of income from her usual occupation during the period of physical disability. The summonses were tested the same day, and the actions were tried together.

Defendants moved, at the trial, for the dismissal of both suits, upon the ground that "they represented but one cause of action, and that the plaintiff did not have the right to institute two suits thereon, one for personal injuries and the other for property damage." The motion was denied. Judgments were entered in favor of the plaintiff, in the first-mentioned cause for $350, and in the second for $250. Appellants now urge that, for the reason assigned, there was error in the denial of the motion to dismiss the suits.

No principle of law is more firmly established than that a

single or entire cause of action cannot be subdivided into several claims, and separate actions maintained thereon. This rule applies to causes of action arising ex delicto. Ordinarily, a single wrongful act affecting a single person gives rise to but one cause of action, for which only one action can be maintained. Leggett v. Lippincott, 50 N.J.L. 462; Reilly v. Sicilian Asphalt Paving Co., 170 N.Y. 40; 62 N.E. Rep. 772; Baltimore Steamship Co. v. Phillips, 274 U.S. 316; 47 Sup. Ct. 600; 71 L. Ed. 1069; McKnight v. Minneapolis Street Railway Co., 127 Minn. 207; 149 N.W. Rep. 131; L.R.A. (1916), D 1164; Perry v. Louisville and Nashville Railroad Co., 199 Ky. 396; 251 S.W. Rep. 202; 39 A.L.R. 560; 1 R.C.L. 341 et seq.; 1 C.J. 1106, 1116. But where there are distinct and separate causes of action, separate actions may be maintained. There is a conflict in the authorities as to the proper rule for determining whether there is one or several causes of action. Some of our sister jurisdictions have ruled that an injury to person and property creates but a single cause of action. The argument in support of that view seems to be that, as the defendant's wrongful act was single, the cause of action must be single, and that the different injuries occasioned by it are merely items of damage proceeding from the same wrong. Reilly v. Sicilian Asphalt Paving Co., supra; Doran v. Cohen, 147 Mass. 342; 17 N.E. Rep. 647; King v. Railroad Co., 80 Minn. 83; 82 N.W. Rep. 1113; 50 L.R.A. 161; Von Fragstein v. Windler, 2 Mo. App. 598.

But the rule is otherwise in this state. This court has held that where injury is caused to person and property by the same negligent act, distinct causes of action exist, and therefore a judgment in one cause is not a bar to an action to recover in the other. Ochs v. Public Service Railway Co., 81 N.J.L. 661; 80 A. 495; 36 L.R.A. (N.S.) 240. Mr. Justice Bergen, in holding that there was a clear distinction between the two classes of injuries, pointed to the recognition of the distinction by the legislature, in prescribing a different period of limitation within which suits may be brought to recover damages for the respective injuries, in

making a claim for injury to property assignable, but declining to do so as to claims for personal injuries, and in creating, in case personal injury results in death, a right of action for the benefit of the next of kin, while the right to recover for the injury to property is vested in the estate of decedent. He observed: "These divers statutes concerning limitations, assignability of rights of action, methods of enforcement and distribution of proceeds, are not consistent with a legislative intent that a single wrongful act gives rise to but one cause of action for different injuries, or injuries to different rights, such as are present in the cause under review. The enforcement of the two rights are made subject to such varying conditions, that an inference may justly be drawn that the legislature considered that there was a plain distinction between them and legislated for each from that point of view."

The New York Court of Appeals pointed to similar legislative enactments as recognizing an essential difference between injury to the person and injury to property. Reilly v. Sicilian Asphalt Paving Co., supra. Moreover, as stated by Judge Cullen in the opinion in that case, "the history of the common law shows that the distinction between torts to the person and torts to property has always obtained. Lord Justice Bowan, in the Brunsden case (Brunsden v. Humphrey, 14 Q.B. Div. 141), has pointed out that there is no authority in the books for the proposition that a recovery for trespass to the person is a bar to an action for trespass to goods, or vice versa." Judge Cullen concluded that because "of the great difference between the rules of law applicable to ...


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