Ferraro v. Taylor

Loring, Justice. In a suit to recover for personal injuries the plaintiff had a verdict against the owner of a rented car, defendant O. H. Gray Auto Livery Service, which has appealed to this court from an order denying its blended motion for judgment or a new trial. At about 7:30 o’clock in the evening of September 1, 1933, defendant Boy Taylor rented a Ford sedan from the corporate defendant O. H. Gray Auto Livery Service on the “drive yourself” plan. Taylor had proceeded only a short distance from the place where he procured the car when he ascertained that the windshield wiper was out of order and ivas not functioning; that there ivas excessive play in the steering device; that the brakes would not hold; that the foot accelerator would stick when pressed down and would not come back when the pressure ivas released. After several near accidents due, as Taylor' claims, to the defects in the car, he ivas, shortly before ten o’clock that evening, driving northerly upon Central avenue in Minneapolis. While driving downgrade over a viaduct the accelerator stuck; the motor was racing; the brakes would not hold; the car would not respond to the steering wheel; the rain ivas beating upon the Avindshield, and his idsion Avas obstructed because thereof and the failure of the Aiundsliield Aviper to *7 function. As a consequence, so he claims, lie lost control of the car; it speeded across the street to his left and smashed into a car driven by the plaintiff Louis Ferraro, causing severe injuries to Louis and also damaging his car. Taylor too was injured, and so was the car he was driving. To recover damages for these injuries plaintiff, by his father as natural guardian, brought this action against Taylor and the other defendant. The father also brought action in his own behalf against the same defendants for expenses incurred by him for his son’s medical and hospital expenses and for consequential damages. The cases were tried together below and have been similarly submitted here. Verdicts for both plaintiffs were rendered against the corporate defendant. But the jury by its verdict also found “in favor of the defendant Roy Taylor.” Defendant corporation, hereinafter referred to as the defendant, urges that it is entitled to judgment because (1) its negligence in failing to furnish a car free from defect was not the proximate cause of plaintiff’s injury; (2) that its primary negligence, if such were shown, was “insulated” by the subsequent and independent negligence of Taylor; (3) that the jury’s finding that the accident was not caused by Taylor’s negligence compels a similar finding for it; (4) defendant also contends that it must have a new trial on the ground of misconduct of plaintiff’s counsel in his argument to the jury. We do not find ourselves in accord with the first three contentions of the defendant. The rule seems to be well established that if the occurrence of the intervening cause might reasonably have been anticipated, such intervening cause will not interrupt the connection between the original cause and the injury. 45 C. J. p. 934, § 493, and cases cited in note 68; Teasdale v. Beacon Oil Co. 266 Mass. 25, 28, 164 N. E. 612, 613; Seith v. Commonwealth Elec. Co. 241 Ill. 252, 260, 89 N. E. 425, 24 L.R.A. (N.S.) 978, 132 A. S. R. 204; Carroll v. Central Counties Gas Co. 96 Cal. App. 161, 167, 273 P. 875, 274 P. 594. In Teasdale v. Beacon Oil Co. 266 Mass. 25, 164 N. E. 612, the clothing of a guest in an automobile was negligently saturated with *8 gasolene by an attendant at a gasolene station. The car was equipped with an old-fashioned coil box which, when uncovered, exposed a spark of electricity when the car was cranked. The driver knew this, and also he apparently knew that the guest’s clothing had been saturated with gasolene. Nevertheless he cranked the car with the top of the coil box off. The guest’s clothing at once burst into flames. In a suit to recover for the ensuing injuries the >oil company contended that the driver’s negligence was the sole cause of the accident and insulated it from liability for the negligence of its employe in saturating the plaintiff’s clothing with gasolene. The court said in holding the defendant oil company liable [266 Mass. 27]: “In an action of this kind the defendant is liable for the natural and probable consequences of his negligent act or omission. 'The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended. The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the-injury.’ Lane v. Atlantic Works, 111 Mass. 136, 139, 140.” In Seith v. Commonwealth Elec. Co. 241 Ill. 252, 260, 89 N. E. 425, 24 L.R.A. (N.S.) 978, 132 A. S. R. 204, the court, while holding the intervening cause as being sufficient to insulate the defendant’s negligence, laid down the general rule as we have stated it here and said: “Where the intervening cause is set in operation by the original negligence, such negligence is still the proximate cause, and where ■ the circumstances are such that the injurious consequences might have been foreseen as likely to result from the first negligent act or omission, the act of the third person will not excuse the first wrongdoer.” Certainly in the case at bar the intervening cause Avas set in operation by the original negligence, for the defendant company sent *9 Taylor out upon the street with a car in such condition that it might reasonably be expected to injure someone. See also Carroll v. Central Counties Gas Co. 96 Cal. App. 161, 167, 273 P. 875, 274 P. 594. If the testimony of the defendant Taylor is to be believed, and evidently the jury based its verdict upon that testimony, the Gray company rented to Taylor an automobile in such a gravely defective condition that it was a menace to all other traffic on the highway. Defective in brakes and steering gear and without an effective windshield wiper, the car, if driven at all upon the highway, rvas likely to collide rvith any other vehicle thereon. In its then condition it rvas a dangerous instrumentality, and the only Ava.y in which Taylor could have got the car safely back to the Gray company Avas to have it towed by another vehicle. Obviously and contrary to the verdict of the jury, he Avas guilty of negligence in driving the car in the condition in which he found it. The Gray company Avas negligent in furnishing him such a car, but it OAved Iavo distinct duties in respect to the car, one to Taylor growing out of its special relation to him to furnish him a safe and manageable car, and the other to the general public, Avhich would necessarily be exposed to risk and danger from the negligent discharge of its duty to Taylor. Moon v. N. P. R. Co. 46 Minn. 106, 109, 48 N. W. 679, 24 A. S. R. 194; Collette v. Page, 44 R. I. 26, 30, 114 A. 136, 18 A. L. R. 74; Saunders System Birmingham Co. v. Adams, 217 Ala. 621, 624, 117 So. 72, 61 A. L. R. 1333. It has been held that Ardiere the earlier tortfeasor ought to foresee the probability of the subsequent act which causes the injury he is not relieved from liability although that act may be unlaAvful or tortious. Certainly this must be the true and just rule, Avhere, as here, the first tortfeasor participated in setting in motion the alleged inter-Arening cause. The supreme court of Kentucky in Kentucky Independent Oil Co. v. Schnitzler, 208 Ky. 507, 514, 271 S. W. 570, 39 A. L. R. 979, had a case before it Ardiere the oil company negligently mixed gasolene rvith kerosene in a retail merchant’s tank and the merchant negligently -sold the same to plaintiff’s intestate. The court held the oil company liable because it should have antici *10 paled that the merchant was likely to carelessly resell the mixture as kerosene to his customers, although he may have been aware of the mixture. Similar decisions were rendered by the same court in Watson v. Ky. & Ind. Bridge & Ry. Co. 137 Ky. 619, 126 S. W. 146, 129 S. W. 341, and Louisville Home Tel. Co. v. Gasper, 123 Ky. 128, 93 S. W. 1057, 9 L.R.A. (N.S.) 548. In the latter case the telephone company had placed a guy wire in an alley in such fashion that those driving vehicles through the alley, unless they were very careful, might run into such wire. In so doing the court held the telephone company negligent. A grocery wagon was negligently driven through the alley and against the guy wire, and as a result the wagon was overturned and the plaintiff, a pedestrian, was painfully hurt. The telephone company sought to escape liability on the theory that the intervening negligent act of the driver of the grocery wagon exonerated it from any liability for its prior negligence. The court held that the telephone company should have foreseen such an accidental or negligent act on the part of some driver which, coupled with its negligence, would result in injury to someone. In the case at bar the Gray company rented the car to Taylor for the very purpose of driving it upon the highway, where it was a menace to all other vehicles, and if it had knowledge of the facts of which it ought to have had knowledge it knew that some accident to some other person using the highway was almost certain to result. It set in motion the very acts which it now claims should relieve it of liability. That being the case, the intervention of Taylor’s negligence was insufficient to break the chain of causation. We see a clear distinction between such cases as Childs v. Standard Oil Co. 149 Minn. 166, 182 N. W. 1000, and Goar v. Village of Stephen, 157 Minn. 228, 196 N. W. 171. In Childs v. Standard Oil Co., while the point is not particularly discussed, it is quite evident that the company could not reasonably anticipate injury to anyone from the negligent use of the shovel which had become covered with kerosene. In Goar v. Village of Stephen, 157 Minn. 228, 196 N. W. 171, careful analysis of the opinion indicates that this court took the view that while the contractor who constructed the electrical *11 installation was negligent, the intervening negligence of the village in neglecting for so long a period to inspect the wires for damage dne to the elements could not reasonably have been anticipated and was an independent intervening cause sufficient to insulate the contractor’s negligence. The finding of the jury for defendant Taylor does not make the verdict perverse. The negligence of the Gray company Avas entirely distinct from that alleged against Taylor; and, Avhile we regard the verdict in favor of Taylor as entirely without foundation and contrary to the conclusive proof, neArertheless it Avill be readily seen that it does not render the verdict against the company perverse. Had the accident occurred immediately after he left the garage before he discovered the condition of the car it Avill be readily conceded that there might have been a verdict in his favor and against the company. The negligence of the two defendants is therefore distinct although at the time of the accident it was concurring. It is to be regretted that clients must suffer for the misconduct of their attorneys and that trial courts must try cases the second time on account of such misconduct, but it is the duty of such courts to keep control of trials and to prevent misconduct from vitiating a record. In the case at bar Mr. Ossanna in his' closing remarks made a flagrant appeal to passion and prejudice, used intemperate language, and made statements not justified by the record. He unnecessarily testified as a witness, commented on his own testimony, and dreAV upon his OAvn experience in personal injury cases in commenting upon the evidence. We shall not embarrass him or encumber this opinion by quoting his remarks. Courts are here to administer justice, not to award verdicts according to prejudice, and it is the duty of the trial court to see that lawyers do not arouse the passions or the prejudices of jurors. In this case it should have interfered on its oavu motion. Courts and counsel must understand that as long as conduct of this character is permitted and indulged in cases will have to be tried over again until they are fairly submitted. *12 Mr. Ossanna testified as a witness for the plaintiffs upon a very important fact issue relating to the absence of a windshield wiper. There was ample other testimony in the case to make that issue o.ne for the jury, but Mr. Ossanna in his argument said that he was proud and happy to have been a witness. As said in the dissenting opinion in Peoples State Bank v. Drake-Ballard Co. 164 Minn. 175, 184, 205 N. W. 59, 62: “The practice of attorneys of furnishing from their own lips and on their own oaths the controlling testimony for their client, is one not to be condoned bjr judicial silence. * The good name and deservedly high standing of the Minnesota Bar require that the practice be stopped, for nothing short of actual corruption can more surely discredit the profession. ':i * * By appearing in the dual capacity of counsel and witness, and then necessarily by argument urging upon the judge, as trier of the facts, the truth of their own testimony, * * counsel for plaintiff have subjected themselves to the results which automatically attend such a spectacle, for a lawyer ‘occupying the attitude of both witness and attorney for his client, subjects his testimony to criticism if not suspicion.’ Ross v. Demoss, 45 Ill. 447 (449). ‘In most cases, counsel cannot testify for their clients without subjecting themselves to just reprehension.’ Potter v. Ware, 1 Cush, (Mass.) 519 (524).” See also Succession of Harkins, 2 La. Ann. 923, 927; Onstott v. Edel, 232 Ill. 201, 83 N. E. 806, 13 Ann. Cas. 28; Frear v. Drinker, 8 Pa. 520. The situation in the case at bar does not fall within any of the exceptions to the impropriety of counsel becoming a witness for his client in a case which he is trying. Order reversed and new trial granted.