49 N.E.2d 543 | Ind. | 1943
Appellee was injured in a collision between an automobile owned and driven by appellant Kizer and an automobile owned and driven by her son, appellant Hazelett, in which she was riding as a guest. She sued both appellants in one paragraph alleging that Kizer's negligence and her son's willful and wanton misconduct concurred in causing her injuries without fault on her part. Each appellant filed a motion to separate the causes of action and redocket and try the same as separate causes of action which motions were overruled and errors are assigned on the rulings. The cause was tried by a jury with verdict against both appellants in the sum of $3,000.00 upon which judgment was entered. Each appellant filed a motion for new trial which was overruled. The errors assigned on this ruling need not be considered.
Appellee asserts that when the torts of two or more persons unite to produce an injury, such injury is indivisible *577
and the person wronged has his remedy against one or all 1-6. of the tort-feasors in a single or separate actions, citing Cleveland C.C. St. L.R.R. Co. v. Hilligoss
(1908),
*578
244 N.W. 863. In Malcolm v. Poland (1939),
The sufficiency of the complaint was not tested by demurrer. It seems to have been assumed by all the parties until the oral argument in this court that it stated a good cause of action against both defendants. But certain questions then propounded to the parties since have had the attention of counsel for appellant Kizer, who now takes the view in a citation of additional authorities that,
". . . the allegation that the defendant Hazelett, Jr., was guilty of acts of wilful or wanton misconduct, and that such misconduct on his part was the proximate cause of the collision and of Appellee's injuries, conclusively deny, as a matter of law, that any acts of mere negligence on the part of Appellant, Kizer, were a proximate cause of the collision?"
While we are not required to determine this question, nevertheless it invokes certain inquiries which are material to our determination of whether or not appellants' *579 several motions for separate trials were erroneously overruled.
The authorities are agreed that contributory negligence is no defense to an action for willful injury. This rule goes back far beyond the time of the enactment of the guest statutes. 7, 8. Steinmetz v. Kelly (1880),
"The doctrine of contributory negligence as a defense has no application to harms intentionally inflicted by the defendant. Sometimes the courts have rationalized the result in terms of proximate causation, declaring that the plaintiff's negligence is not the proximate cause of harm intentionally inflicted. This, however, is of little assistance. The proper explanation is that the plaintiff's misconduct is not of sufficient culpability to be a bar to the action. The conduct of the parties is of two distinct levels of social and moral culpability and the one is not set off against the other." § 150 Harper, Law of Torts.
We are not inclined to dismiss too readily the theory that "plaintiff's negligence is not the proximate cause of harm intentionally inflicted." Whatever be the proper basis for the rule, it presents a complication in this case which cannot be ignored. If we should be required to hold in a particular case that the driver of a car in which a guest was riding was guilty of willful or wanton misconduct so as to establish a liability to a guest who was injured in a collision occasioned by such misconduct, it is hard to see why the driver of the other car would be barred by his negligence from recovery against the host driver so guilty of willful and wanton misconduct. Where questions such as these are presented for the consideration of the jury in one trial on *580 one paragraph of complaint it seems to us that the opportunity for confusion is so great that as a preventative there well may be a separation of the issues and separate trials. This view was taken by the Iowa court in Manley v. Paysen, supra, and Fay v. Dorow (1937), 224 Ia. 275, 276 N.W. 31. While perhaps there were slightly more complications in each of these cases than in the one at bar we think that the principle laid down therein is applicable and that because of the various hostilities between the parties, the differences and inconsistencies of defenses, the fact, which was given consideration in the Manley case, that a family relationship existed between the host and the guest, and other considerations that are readily apparent to one who is accustomed to the trial of causes, the appellants should have been granted separate trials and that their motions were improperly overruled.
Examination of the record confirms our view in this respect. There were five persons in the Kizer car and four in the Hazelett car. Eight of these testified. The other witnesses were a doctor called by appellee, two garage men called to testify as to the injuries to the respective cars, and four doctors apparently called by appellant Kizer to testify as experts with respect to the injuries to the appellee. As to the advisability of contesting the amount of damages there are two schools of thought which may have existed in this case. Many good trial lawyers ignore or minimize the question of damages, preferring to center the jury's attention on the question of liability or absence thereof. A defendant's attorney so minded cannot choose this manner of trying the case for his client where the other defendant insists upon a different course. Appellant Kizer tendered four instructions with respect to the duty of appellant Hazelett under the statute to observe the stop *581 sign. Appellant Hazelett, for various reasons given in his objections thereto, says that each of these instructions is erroneous and attempts to assign their giving as error. Appellee says she was not responsible for the instructions and the error if any is not available to appellant Hazelett. If he had been the only defendant the instructions probably would not have been submitted or at least not in the form to which he objects. One instruction given by the court at appellee's request declares in substance that if both appellants were guilty of negligence which combined to cause the injury the appellee, if she was free from contributory negligence, would still be entitled to recover against the appellant Kizer even though the jury should find that Hazelett was not guilty of willful or wanton misconduct. This injects into the controversy an issue of negligence on the part of Hazelett when in fact the issue presented by the complaint is his willful or wanton misconduct.
Even more serious than these considerations however is the fact that the jury found against appellant Hazelett on evidence wholly insufficient to establish willful or wanton misconduct on his part. The parties themselves in the oral argument were sufficiently advised of the court's views on this question. A recital of this evidence is not here necessary because we do not put our decision upon error in overruling the motion for a new trial. The evidence as to Kizer's negligence is so meager and that which would tend to sustain the verdict against him so improbable in view of the physical facts, concerning which there is apparently no dispute, that it is possible or even probable that a jury would not have found against him without a finding against his co-defendant. These complications, of course, occurred after the ruling was made on the motions to *582 separate, but even then they might, at least in some measure, have been anticipated.
To sustain the trial court's ruling on the motion to separate appellee principally relies upon six cases. Black v. Marsh
(1903),
Other questions presented are not likely to arise in another trial and need not be decided.
For the error in overruling the several motions of the appellants for separation of the causes of action and separate trials, the judgment is reversed with instructions to set aside the verdicts and to sustain each of said motions.
NOTE. — Reported in