Barkman v. Montague

Wiest, J. The afternoon of June 25, 1937, plaintiff was riding in an automobile in an easterly direction over a two-lane paved highway when two cars passed and, he claims, suddenly stopped at or near the intersection of a crossroad and, to prevent collision, the driver of the car in which he was riding swerved to the right and, to avoid striking a tree, turned to the left, crossed the westward traffic lane and the car came to a stop off the pavement, partly off the berm at the north side of the pavement and in a shallow ditch. While in that position he claims defendant Montague, in driving his car westward at a high rate of speed, left the pavement and caused his car to strike the car in which plaintiff was riding, causing him injuries. Defendant Montague claimed the collision occurred on the pavement and was caused by the car in which plaintiff was riding coming suddenly from behind the other cars and into his proper lane of travel. The negligence charged against defendant Webster was in so suddenly stopping his car without warning as to force plaintiff into the position he was in when injured. On motion of defendant Webster, at the close of plaintiff’s proofs, the court directed a verdict in his favor, and this review does not involve that direction except the claimed effect thereof on the right of plaintiff to proceed to judgment against defendant Montague. One question is whether, under a declaration charging specific acts of negligence by each of two defendants and alleging such negligence concurred in causing personal injury to plaintiff, does the dis *541 charge by the court of one defendant, in point of law, preclude a verdict and judgment against the other defendant. Upon trial by jury, at the close of plaintiff’s proofs, the court directed a verdict discharging defendant Webster and reserved decision on the motion of defendant Montague for a directed verdict in his favor. Defendant Montague put in his proofs and the jury rendered a verdict against him for $1,500.97. The court, notwithstanding the verdict, entered judgment in favor of defendant Montague on the grounds that: “When the court directed a verdict in favor of Webster, that put an end to any ‘ combined ■ and concurrent’ negligence theory, which was the only theory of plaintiff’s declaration. “I am now of the opinion that, when the court directed a verdict in favor of Webster, then for that reason the court should also have directed a verdict in favor of Montague. “The declaration being planted solely upon the theory of concurrent and combined negligence, plaintiff must stand or fall upon that theory.” The court also found plaintiff guilty of contributory negligence as a matter of law and the verdict as to Montague was against the overwhelming weight of the evidence. Plaintiff appeals. The declaration of a single count alleged specific acts of independent negligence by each defendant and, while it also charged that the concurrent negligence of both defendants brought him injury, did not constitute a charge of joint negligence. In Carr v. St. Louis Auto Supply Co., 293 Mo. 562, 569 (239 S. W. 827), a suit for personal injury, occasioned by an automobile accident, the court adopted the well-established rule stated in 1 Shear- *542 man & Redfield on Negligence (6th Ed.), §122, as follows: “ ‘Concurrent, as distinguished from joint negligence, arises where the injury is proximately caused by the concurrent wrongful acts or omissions of two or more persons acting independently. That the negligence of another person than the defendant contributes, concurs or co-operates to produce the injury is of no consequence. Both are ordinarily liable. And unless the damage caused by each is clearly separable, permitting the distinct assignment of responsibility to each, each is liable for the entire damage. The degree of culpability is immaterial.’ ” Court Rule No. 38, § 3 (1933), relative to an action brought against two or more defendants, applies to actions ex delicto. Pruner v. Railway, 173 Mich. 146. In Banzhof v. Roche, 228 Mich. 36, 41, it was said: “It is elementary that where injury results from the concurrent negligence of two or more, each proximately contributing to the result, recovery may be had against one or more, although but one satisfaction may be had. If the negligence of the defendant company caused the injury it is not absolved from liability because the concurrent negligence of Roche contributed to the result.” The court was in error in holding that under the declaration the discharge of one defendant, by direction of the court, prevented recovery against the other defendant. The record does not contain the charge to the jury and we must assume the instructions covered the issue of contributory negligence of plaintiff and, therefore, the verdict in favor of plaintiff was upon a finding of due care on his part. *543 The finding by the court that the verdict was against the great weight of the evidence has caused an examination to be made of the evidence and brought us to conclusion that the verdict on the facts was supported by evidence and should stand. The point that, as a physical fact, the collision could not have occurred as claimed by plaintiff was an issue of fact for the jury. We find no fatal variance between the specific allegations of defendant Montague’s negligence and plaintiff’s proofs. The declaration alleged in part: “That the said defendant, Montague, disregarding his duty in the premises, drove and propelled his said vehicle to his right, or the northerly side of said pavement, and clear off the paved portion thereof, along and upon the berm or shoulder of said highway, and was so driving and operating the same at a high and excessive rate of speed, at the time of the impact above referred to.” This was in accord with plaintiff’s proofs, and no amendment to the declaration was necessary. The judgment is reversed, with costs, and the case remanded to the circuit court for entry of judgment on the verdict. Sharpe, C. J., and Chandler, McAllister and Butzel, JJ., concurred with Wiest, J.