Maddux v. Donaldson

Carr, J.

(dissenting). The principal question at issue in these cases is whether a defendant in an action to recover damages for numerous personal injuries suffered in successive accidents may be held liable in the absence of proof that such injuries were caused proximately by his negligent or otherwise wrongful act. The instant cases resulted from an accident occurring July 15, 1956, on US-112 a few miles from the village of Clinton. The traveled portion of the highway was a 2-lane blacktop road. It was a rainy day and the pavement was wet. The record indicates that it was nearly dark at the time of the occurrence.

*437 Plaintiff Fred Maddux was driving a Ford pickup in an easterly direction on the highway in question, his wife and young daughter being in the car with him. Defendant Bryie was following the Maddux car, the speed of each vehicle being between 35 and 40 miles per hour. As Mr. Maddux was approaching a curve in the road he noticed some distance ahead of him an Oldsmobile car driven by defendant Donaldson, approaching at a high rate of speed and from 1,500 to 2,500 feet away at the time. Said car was skidding sideways. He continued on his course, however, and a collision occurred on the pavement. Approximately 30 seconds later, according to the testimony of Mr. Maddux, the automobile of Mr. Bryie ran into the rear of the Maddux truck. Each of the 3 plaintiffs suffered numerous injuries and actions for damages were instituted. The cases were tried together in circuit court and have been submitted in like manner on this appeal.

It appears from the pretrial statement of the circuit judge, and also from an opinion filed by him in the cases, that each of the plaintiffs dismissed as to defendant Donaldson, apparently for the reason that the latter’s insurance carrier was insolvent, that receivership proceedings had been instituted against it, and that each plaintiff had filed a claim therein. In consequence the cases were tried against defendant Bryie alone. At the conclusion of the testimony the trial judge granted defendant’s motion to dismiss the cases brought by Mrs. Maddux and the daughter on the ground that there was no testimony before the jury on which a finding could be based that the negligence of defendant Bryie was the proximate cause of any part of the injuries sustained by either of said plaintiffs, or of the aggravation thereof.

A motion to dismiss the case brought by Mr. Maddux was also submitted on the ground that he was *438 guilty of contributory negligence as a 'matter of law in deliberately proceeding in the face of an obvious danger. The trial judge concluded that the testimony clearly indicated the contributory negligence charged, and the motion was granted. The 3 plaintiffs have appealed. On behalf of Mrs. Maddux and the daughter it is argued that the cases should have been submitted to the jury on the theory of joint and several liability on the part of Donaldson and Bryie, and that the latter should have been held liable for the payment of damages for all of the injuries sustained by said plaintiffs in the 2 collisions. On behalf of Mr. Maddux it is insisted that whether he was guilty of contributory negligence was a matter for determination by the jury.

The rule has been consistently recognized in Michigan, as well as in other States, that a tort-feasor may not be held liable for damages for an injury not caused by such defendant’s wrongful conduct. In 15 Am Jur, Damages, § 13, p 404, it is said:

“A defendant is liable only to the extent to which his acts have caused the injury complained of, and it follows that separate wrongs done by independent agents cannot be joined together to increase the responsibility of one of the wrongdoers, notwithstanding any difficulty there may be in determining what part of the injury or loss was the result of the acts or omissions of the defendant, and what part was the result of other causes.”

In Rodgers v. Canfield, 272 Mich 562 , an action for damages for malpractice was brought against 2 physicians. The testimony indicated that 1 of said physicians had not participated in all of the alleged acts of malpractice charged against the other., The trial court, however, directed the jury to return a verdict against both defendants for the full, amount of the damages shown. This Court reversed on the *439 ground that the defendant whose participation was partial only could not be held liable for the acts of the other defendant in which he did not take part.

In Cassidy v. Kraft-Phenix Cheese Corp., 285 Mich 426, 438, 439 , it was declared that:

“The damage recoverable in consequence of a tort is only such as is the direct result of the tort, i.e., damage of which the tort is the proximate cause.” (Citing cases.)

Of like import is Witheral v. Muskegon Booming Company, 68 Mich 48 (13 Am St Rep 325), which recognized the general rule that the defendant was not liable for the independent acts of third parties.

It will be noted that we are not dealing in these cases with the possible liability of a first tort-feasor for injuries sustained by plaintiff as the result of subsequent acts by others. Conceivably the facts in such a case might justify the conclusion that the first wrongdoer’s conduct had. set in motion a chain of circumstances, that should have been foreseen by him, involving the theory of continuing negligence or other sufficient reason for not applying the- doctrine of subsequent independent acts of negligence on the part of another. Neither do we have a case of joint tort-feasors or of concurrent acts by 2 or more parties resulting in an injury. As plaintiff Fred Maddux testified, approximately 30 seconds elapsed between his collision with the Donaldson car and the subsequent impact by the automobile of defendant Bryie. A number of injuries were sustained by each of the parties, but the proofs failed to indicate what specific injuries were caused by each impact. In fact, there was a dearth of proof that defendant Bryie, with whose liability we are solely concerned in the instant cases, was responsible for any of the injuries sustained by Mrs. Maddux or the daughter.

*440 In the case of Young v. Dille, 127 Wash 398 ( 220 P 782 ), the facts involved were very similar to those in the cases now before us. It was the claim of the plaintiff that defendant Dille negligently ran into plaintiff’s vehicle, causing it to change its course so that it came to a stop on the opposite side of the street where it was hit by a truck driven by the defendant Harris. Under instructions from the trial court the jury returned verdicts against both defendants. In granting a new trial on the ground that the proofs did not sustain such verdicts, it was said (pp 404, 405) :

“The cause seems to have been tried in the court below on the theory that the defendants Dille and Harris were joint tort-feasors. But it seems to us manifest that they were not such, either if the facts be considered from the allegations of the complaint or by the proofs shown at the trial. To be joint tort-feasors, the parties must either act together in committing the wrong, or their acts, if independent of each other, must unite in causing a single injury. Neither of these conditions were here present. The allegations and the proof are that Dille by one act of negligence caused the appellant certain injuries, and, that Harris, after the commission of this act of negligence, by an independent act of negligence caused him further and additional injuries. The acts have no relation to each other except nearness in time. But time is not a determinative consideration. If the acts are not joint in fact, or, if the acts do not unite in causing a single injury, they are as widely separated in law by the lapse of moments as they would be were they separated by the lapse of hours or days. Plainly, under the conditions here shown neither of the actors in the wrong could be responsible for the injuries caused by the other.

“The jury, therefore, sensed the true situation when they made separate findings against the defendants. But the fault in the verdict lies in the *441 fact that the evidence did not justify the findings. A part of the injuries for which recovery was sought was the destruction of the automobile. This was destroyed in part by the act of Dille and in part by the act of Harris. The injuries caused by each was'capable of somewhat definite measurement, yet there was no attempt at measurement, and the jury could do no more than guess as to the extent of the damages each of the wrongdoers severally caused.”

As before noted, in the cases at bar there was no testimony introduced from which a jury might conclude that injuries sustained by Mrs. Maddux or by ''the daughter resulted from defendant Bryie’s negligence. The motion was predicated on the lack of proof, and the trial judge made his ruling accordingly. In the case above cited It appears that there was evidence as to certain elements of damage caused by each defendant, but the proofs were insufficient to sustain the verdict as rendered.

This Court in several prior cases has considered the question here involved. The decision in Frye v. City of Detroit, 256 Mich 466 , indicates the rule of law that has been uniformly observed. There action was brought to recover for personal injuries resulting in the death of plaintiff administrator’s decedent. It appears that the injured party was standing in a safety zone waiting for a streetcar, was struck by an automobile, and thrown upon the tracks of the defendant city where he was struck by a streetcar. Suit was brought against the owner and driver of the automobile, as well as against the city, but no service of summons was had on the individual defendants. The proofs on the trial failed to show whether the death was caused by the. automobile or by the streetcar. In commenting on the situation, and affirming the directed verdict for the city, it was said (pp 469, 470):

*442 “It is a well-established rule that, in order for plaintiff to recover against the city, it was necessary to show the negligence of defendant city and the proximate cause of death. Upon the second issue plaintiff did not, and could not, inform the jury of the injuries inflicted by the streetcar or those inflicted previously by the automobile. It was necessary for plaintiff to submit proof, from which the jury could draw the reasonable inference that the death of plaintiff’s decedent would not have occurred but for the negligence of defendant city. The plaintiff must go beyond showing that such might have been the case.

“The rule, in negligence cases, is well stated in Ramberg v. Morgan, 209 Iowa 474 ( 218 NW 492 ):

“ ‘True, it was not necessary for plaintiff to prove the causal connection by direct evidence, but substantial evidence must be furnished upon which a reasonable basis for inference may be made. The proof must establish causal connection beyond the point of conjecture. It must show more than a possibility. Verdicts must rest upon reasonable certainty of proof. Where the proof discloses that a given result may have occurred by reason of more than 1 proximate cause, and the jury can do no more than guess or speculate as to which was, in fact, the efficient cause, the submission of such choice to the jury has been consistently condemned by this Court and by other courts.’ ”

A similar factual situation was involved in De Witt v. Gerard, 274 Mich 299 , to that in the Frye Case, the plaintiff being struck by an automobile and thrown upon the streetcar tracks or in proximity thereto. He was then further injured by a streetcar. The action was brought against both the automobile driver and the city, plaintiff submitting to a nonsuit as to the former. The trial court directed a verdict in favor of the city but this Court concluded from the testimony in the case that plaintiff had suffered *443 certain injuries inflicted on his person by the streetcar, and that the question of allowing damages therefor should have been submitted to the jury. As the trial court correctly found, there is no such testimony in the instant cases as to the liability of defendant Bryie. The recent decision of Meier v. Holt, 347 Mich 430 , is in accord with the prior cases. As in the cases at bar, the acts of negligence of the defendants were not concurrent nor was there a single indivisible injury.

As before noted, it is claimed on behalf of appellants that this Court should now adopt the rule that in a case of this nature involving successive acts by claimed tort-feasors with injuries resulting to a plaintiff the defendants should be considered as jointly and severally liable to respond in damages for all injuries sustained. Mr. Justice Smith, in writing for reversal of the cases now before us, recognizes the rule that where distinct and separate injuries have resulted from independent acts of 2 or more tort-feasors each should be held liable to respond for the results of his own wrongdoing, assuming that the proofs provide a sufficient basis for the trier of the facts to apportion the damages between or among the defendants. In the event, however, that the proofs, as in the instant cases, do not furnish a basis for such allocation of damages as against the defendants it is contended that the injuries received should be considered as a single indivisible injury and the defendants held jointly and severally liable on the theory that they are guilty of concurring acts of negligence or other wrongdoing. Such theory would lead to the conclusion in the instant cases that defendant Bryie may have judgment entered against him for the full amount of the damages for the injuries sustained by Mrs. Maddux and the daughter. Justice Smith would reverse and remand for final disposition in accord *444 anee with Ms suggested solution of the problem before us.

We are not in accord with such conclusion. Basically, it is inconsistent with the general rule that liability may not be imposed in a tort action of this character unless the injuries' for which the recovery of damages is allowed resulted proximately from the wrongful conduct of the defendant so required to respond. The application of such theory would obviously result in relieving a plaintiff bringing action against 2 or more successive tort-feasors of the duty of proving his case against each in order to be entitled to recover damages therefrom. Under ordinary circumstances at least a plaintiff might consider that a joint and several judgment against both or all of the defendants would be preferable to séparate recoveries against them based on evidence. This might well result in forcing a defendant to ás'sume the burden of showing liability of one of his codefendants in order to avoid a judgment against himself.

Attention has been called to the following- quotation from 1 Cooley on Torts (4th ed), § 86, pp 277, 278:

“The weight of authority will, we think, support the more general proposition, that, where the negligences of 2 or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design or concerted action.”

It will be observed that the statement quoted refers to concurrent acts of negligence where the result is a single indivisible injury. Such is not the situation in the cases at bar. Each plaintiff received a number of injuries and the acts of Donaldson and Bryie were, not concurrent. There was an interval of time between the collision of the Maddux car with *445 Donaldson’s automobile- and tbe subsequent impact resulting from defendant Bryie’s vehicle running into the rear of the Maddux car. The balance of the section from which the above quoted language is taken indicates clearly that the textwriter was referring solely to the liability of concurrent tortfeasors whose acts had produced a single indivisible injury. The cases cited in support of the text, including Young v. Dille, supra, emphasize the application of the rule stated. Among such cases is Weingand v. City of North Platte, 108 Neb 17 ( 187 NW 90 ). Involved there was the question of liability on the part of several defendants guilty of diverting rainwater from the roofs of their buildings into an overloaded sanitary sewer in violation of a municipal ordinance. Plaintiff claimed that the basement of the hotel that he was operating was flooded and, in consequence, that he was damaged by the acts of the several defendants and entitled to equitable relief. In deciding the issues raised in plaintiff’s favor it was held the defendants, while not acting in concert, were liable, their concurrent acts of wrongdoing having resulted in a single injury.

Justice Smith has also referred to the rule stated in 4 Restatement, Torts, § 879, to the effect that “each of 2 persons who is independently guilty of tortious conduct which is a substantial factor in causing a harm to another is liable for the entire harm, in the absence of a superseding cause.” The discussion of the rule and the illustrations given in the comment thereon clearly suggest that the reference is to concurrent conduct of tort-feasors resulting in a single injury. The following paragraph seems to make this interpretation quite clear:

“The rule stated in this section does not apply where 1 of the tort-feasors causes 1 harm and the other causes another and distinct harm. Nor does *446 tbe rule apply where a person causes a harm which is aggravated by another; while each of the 2 tortfeasors is liable for the harm he causes, the joint liability is limited to the aggravation. In such cases both may be liable for the harm caused by the aggravation, but the second tort-feasor is not liable for the original harm.”

Such comment clearly indicates the scope of the rule and its nonapplication to a situation of the character involved in the cases at bar.

There is another aspect of the situation before us that merits consideration. The Fourteenth Amendment to the Federal Constitution forbids any State to “deprive any person of life, liberty, or property, without due process of law.” The Constitution of Michigan, art 2, § 16, contains a like inhibition. The query is suggested, if a defendant in a case of the nature under consideration is adjudged to pay damages for injuries not shown to have been caused by wrongful conduct attributable to him, does such result comport with the basic requirement pertaining to due process of law? If appellants are correct in their claim that they are entitled to judgment against defendant Bryie for damages for all injuries sustained in the successive automobile collisions in the absence of proof sufficient to support a finding that defendant Donaldson was alone responsible for certain of said injuries, the obvious result is that defendant Bryie will be forced to pay damages for injuries not shown to have been caused by his own wrongful act or by the act of another under such circumstances as to be attributable to him. Such a situation is not comportable with due process.

In the comparatively recent ease of Thompson v. City of Louisville, 362 US 199 ( 80 S Ct 624 , 4 L ed 2d 654), the supreme court of the United States had before it an unusual situation involving the matter of due process under the Fourteenth Amendment. *447 Appellant Thompson was convicted in the police court of the city of Louisville of offenses referred to as loitering and disorderly conduct. He was fined $10 on each charge. It was his contention that there was no proof in the case tending to show that he had committed either of said offenses. Having no remedy in any Kentucky court other than the court in which he was tried, he sought review on certiorari in the Federal supreme court. Because of the unusual situation the writ issued and the court after reviewing the record upheld Thompson’s contention, saying (p 206):

“Thus we find no evidence whatever in the record to support these convictions. Just as ‘conviction upon a charge not made would he sheer denial of due process,’ so is it a violation of due process to convict and punish a man without evidence of his guilt.”

By like process of reasoning the conclusion follows that to compel one to respond in damages because of injuries not shown by proof to be attributable to him involves a denial of due process. The trial judge was right in granting defendant Bryie’s motions in the cases of Mrs. Maddux and the daughter.

This brings us to the question whether the evidence indicated with the requisite degree of clarity that plaintiff Fred Maddux was guilty of contributory negligence barring recovery. In a written opinion filed by the trial judge he summarized his conclusion as follows:

“Fred Maddux saw the obvious danger of the Donaldson car, out of control, coming and careening towards him, at a distance away from him of from 1,500 to 2,500 feet down the highway. He did not stop. He could have stopped. He drove on towards a clearly seen danger, and took a chance on dodging the Donaldson car. His decision was unfortunate for himself and many persons. He was not confront *448 ed with an emergency in making bis decision. He deliberately drove on and contributed to the creation of a real emergency. I rule he is guilty of legal negligence.”

Mr. Maddux, as a witness in his own behalf, testified as follows:

“Q. Your recollection is that the car was ahead of you down the road.

“A. Yes, coming.

“Q. You say it was swinging. Was it skidding sideways ?

“A. It was coming in a gradual arc, sideways down the road.

“Q. It never went off the road, did it?

“A. No, it was on the pavement.

“Q. I think you said what you did was to try to pass the point of the are before that car got to you?

“A. That is right.

“Q. You thought if you could get up past that arc he would miss you 1

“A. Yes, sir.”

A trooper of the Michigan State police investigated the accident shortly after it occurred, going from the Clinton State police post. He testified that the Maddux car and the Bryie car were in the eastbound lane, that there was a shoulder on each side of the road, and that he did not recall that any portion of either of said cars was on the shoulder. Whether after observing the skidding automobile some 1,500 to 2,500 feet ahead of him Mr. Maddux changed his rate of speed does not appear. As before noted, the testimony indicates that he had been driving at a rate of 35 to 40 miles per hour. It is not questioned that he realized that the Donaldson automobile was out of control, and it must have been obvious to him that if he continued on the pavement he might be struck by it and equally obvious that the danger would be increased by his continuing to drive towards *449 the skidding automobile before him. Nonetheless that is precisely what he did instead of taking to the shoulder of the road and stopping his car, or reducing its speed to a nominal rate.

Without discussing the matter in detail it must be said that he did not exercise for his own safety and the safety of his wife and daughter the degree of care that a reasonably careful man would have exercised under the same circumstances. He took a chance that he might escape the oncoming danger, but under the circumstances taking such a chance was clearly negligence that contributed to the accident. Mr. Maddux had an opportunity to consider the matter and reach a determination as to the proper course to follow. It may be inferred that he was an experienced driver. He was 44 years old at the time of the trial. The trial judge was not in error in holding him barred by his contributory negligence from recovering damages against defendant Bryie.

The judgments from which the appeals have been taken should be affirmed.

Dethmers, C. J., and Kelly, J., concurred with Carr, J.