Lead Opinion
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.
In Teasdale v. Beacon Oil Co.
“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.
“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
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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.
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.
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.
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.
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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.
“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,
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.
Dissenting Opinion
(concurring in part, dissenting in part).
I am in full accord with that part of the opinion Avhich relates to the misconduct of plaintiffs’ counsel. It is obvious that by no stretch of the imagiiiation can such remarks be construed as anything other than prejudicial.
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Nor do I find any difficulty in going with the majority in that part of the opinion wherein it is said that “where the intervening cause is set in operation by the original negligence, such negligence is still the proximate cause.” But I do have difficulty, in fact find myself wholly unable, to agree that upon the facts in the instant case that rule is applicable. From what has been said respecting Taylor’s knowledge of the defective condition of the automobile it seems clear that we have here an efficient intervening cause so that, even granting defendant’s negligence, the intervening cause became the proximate cause and as such insulated defendant’s negligence. Can there be any doubt that the causal connection between defendant’s negligence and plaintiff’s injury was broken by the interposition of independent human action? If that be granted, as I think it must, then he who has suffered injury must look for recoupment against the originator of the intermediate cause. He has no recourse for the acts of omission or commission on the part of the original wrongdoer. Mire v. Ziegler Co.
The following quotation from Cooley, Torts (2 ed.) p. 76, is appropriate :
“If the original act Avas wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which were innocent” (Italics mine.)
Taylor’s state of mind when driving the car after knowledge of its defects conclusively shows that he acted perversely. (I am using the word “perverse” as the equivalent of “obstinate in the wrong; not disposed to be set right.” Webster’s NeAV International Dictionary [2 ed.] 1935.) In his testimony he 'described the car as “a pineapple,” an “old melon,” and an “old wreck”; that “this car Avas just like all the rest of them I ever rented over there. There is none of them in shape.” He “came near colliding” with a streetcar because the brakes would not work. At another time he thought he would have “to pretty near put it in reverse in order to stop.” *14 Another near accident occurred while he was following another car, the foot throttle stuck, and he had to reach down with his hand to raise it. Fully aware of these many and serious defects, he nevertheless continued to drive this “old wreck” upon the busy streets of Minneapolis. The weather ivas rainy. Because of the claimed defective windshield wiper he had to stop and wipe off the windshield. Instead of taking the car back to the service company, he thought it ivas all right to drive it even if it ivas not “in shape”; it was not his “lookout” but the owner’s “hard luck” if anything happened.
If Taylor had rented a gun from defendant and had also purchased a box of shells, informing defendant that he wanted blank cartridges (i. e., not loaded with shot or bullet), and had then proceeded to attend some gathering where a salute was to be fired but before doing so had tried out several cartridges and found that each contained shot or bullet, can anyone reasonably say, if under such circumstances he fired a shot, causing injury or death, that the original wrongdoer would still be liable? It seems to me too obvious for argument that such act of deliberateness on Taylor’s part would be such efficient intervening human agency as would insulate defendant’s original wrong. And the authorities generally support this view.
There is nothing new or novel in the present situation as to applicable legal rules. In the “squib case” (Scott v. Shepherd, 2 W. Bla. 892, 1 Smith’s Leading Cases, 549, 7th Am. Ed. 754), decided in 1770, the original wrongdoer was held to liability because he set in motion an inherently dangerous instrumentality which, being thrown at another, was by the latter, to protect himself, met and thrown to still another, who did the same thing for his own preservation. The question determinative of result was Avhether the intermediate parties acted merely mechanically, by sudden impulse to avoid the squib exploding against themselves, or if they mischievously or inadvertently acted after opportunity to consider the risk. DeG-rey, C. J. said [2 W. Bla. 899]:
“It has been urged, that the intervention of a free agent will make a difference; but I do not consider ‘Willis and Kyal [the in *15 termediate parties] as free agents in the present case, but acting-under a compulsive necessity for their own safety and self-preservation.”
It will be observed that the basis for liability of the original wrongdoer was properly based upon the theory that the acts of the other persons involved were involuntary, made at the spur of the moment “under a compulsive necessity for their own safety,” and as such they were not “free agents,” nor Avas such conduct on their part their voluntary physical acts. With some variations this rule has ever since been recognized in England as well as here. Thus in M. & St. P. Ry. Co. v. Kellogg,
“The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments, * '* The question always is, Was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural Avhole, or was there some neAV and independent cause intervening between the Avrong and the injury? It is admitted that the rule is difficult of application. But it is generally held, that, in order to warrant a finding that negligence, or an act not amounting to Avanton Avrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to haA’e been foreseen in the light of the attending circumstances.”
This court in Purcell v. St. Paul City Ry. Co.
“There may be a succession of intermediate causes, each produced by the one preceding, and producing the one folloAving- it. * * * The neAV, independent, intervening cause must be one not produced by the wrongful act or omission, but independent of it, and adequate to bring about the injurious result.”
*16 And this seems to have been the consistent holding of this court ever since.
I shall not review all our cases bearing upon this subject. A few will suffice.
In Childs v. Standard Oil Co.
Another case also of value here is Goar v. Village of Stephen,
In the late case of Guile v. Greenberg,
“The fact that damage might not have resulted but for plaintiff’s placing himself in an exposed position does not necessitate a conclusion that his conduct was a proximate cause of the damage. If his exposed position resulted in injury only through some distinct wrongful act or neglect of another, the other’s act is the proximate cause and 'insulates’ the original conduct. The injury will be imputed to it and not to the more remote conduct. * * Here as elsewhere in the law of negligence, the distinction between cause *18 and condition is to-be made,” citing Childs v. Standard Oil Co.149 Minn. 166 ,182 N. W. 1000 .
Cases from other jurisdictions sustain our own. See Babcock v. Fitzpatrick,
Plaintiffs cite and rely upon Saunders System Birmingham Co. v. Adams,
“One letting an automobile for hire, to be used on a public highway, with the steering gear in defective condition, is liable for injury to a traveler on the highway by the machine becommg ungovernable beccmse of such defects.” (Italics ours.) 18 A. L. R. 74, headnote 2.
In Trusty v. Patterson,
In Eklof v. Waterston,
In Mitchell v. Lonergan,
The testimony in defendant’s behalf clearly shows that its servants and agents thought the car was in good shape for service. It is not to be presumed, and certainly there is no proof, that it knoAvingly or intentionally put an inherently dangerous instrumentality in the hands of Taylor.
The liability of a bailor for defects in property bailed is thus stated in 3 E. C. L. p. 148, § 71:
“But if a bailor is under any circumstances ansAverable to third persons injured by a dangerous article or substance let by him to another, it can only be when there is no intervening human agency which might have prevented the injury. So it has been held that a bailor or letter of electrical appliances is not liable to a third person injured on the premises Avhere such appliances are used by his coming into contact Avith a Avire charged with electricity, if the person to whom such appliances were furnished knew of the condition of the wire, and of the necessity for taking precautions to avoid harm to persons aaTlo might come into contact with it,” citing Griffin v. Jackson L. & P. Co.128 Mich. 653 ,87 N. W. 888 , 92 A. S. R. 496, and note, 55 L. R. A. 318.
*20 As to liability of owner for negligence of one to whom car is loaned or hired, see annotations, 36 A. L. R. 1138, 68 A. L. R. 1009, 100 A. L. R. 920.
The only question determinative of ultimate liability is that of proximate cause. Granting that the evidence is sufficient to take, the case to the jury in respect of defendant’s initial negligence, likewise that defendant owed a duty to third persons, including plaintiff, the fact nevertheless remains that Taylor’s misconduct ivas the proximate cause of plaintiff’s injuries because his acts insulated and made for naught defendant’s negligent acts or omissions. No other conclusion is possible unless this court is now to overturn and throw into the ash can the well considered cases of this court, reference being had to the Childs, Goar, and Guile cases, herein-before cited.
I am unable to ñnd anything in the facts justifying the view that defendant’s negligence constituted “a substantial factor” in bringing about plaintiff’s hurt. See Peterson v. Fulton,
Counsel for plaintiffs have diligently searched for authority to sustain plaintiffs’ cause against defendant; and so undoubtedly has the writer of the majority opinion. Aside from Teasdale v. Beacon Oil Co.
Not only does the majority opinion overturn our prior cases, but it virtually adopts the theory of liability imposed in cases where children suffer harm from explosives left in such fashion as to be accessible to them. The cases bearing upon that phase are adequately annotated in 43 A. L. R. 434, 49 A. L. R. 160, and 100 A. L. R. 451.
It is possible that by L. 1933, c. 351, § 4, our legislature sought to afford a suitable remedy under circumstances such as here exist. That act, however, is not applicable in any event as it did not come into effect until after the happening of this accident.
*21 Judgment should be ordered for defendant notwithstanding- the verdict.