224 N.W. 820 | Iowa | 1928
I. The injuries of which appellee complains were received by her near the northwest corner of the intersection of Fourth Street and Avenue G in the city of Cedar Rapids, and occurred in the following manner: Avenue G lies east and 1. PARTIES: west, and Fourth Street north and south. defendants: Appellant Robinson was driving his car westerly tort-feasors along the north side of Avenue G, and Max committing Padzensky, the son of Dave, who owned the car, unintention- was driving his car northerly along the center al injury. line of Fourth Street. When near the center of the intersection, the automobiles collided, and as a result, became interlocked. They were thrown out of their course toward the northwest of the intersection. The Padzensky car struck appellee near the corner of the curbing, knocked her down, and she was dragged under the car until it was stopped, 56 feet farther north. After proceeding northward from the corner of the curbing, the cars became separated, and the Robinson car was stopped on the opposite side of the street. Her injuries were serious, and, she claims, permanent. The petition alleged that each car was being negligently driven, and that the injury resulted from the concurrent negligence of the two drivers.
The chief ground of error alleged by appellant — to wit, that there is a misjoinder of causes of action and of parties — was raised at every step of the proceeding and in every way known to the profession. All, of course, concede that joint tort-feasors, properly so defined, may be sued jointly, and a joint judgment recovered against them. The point of divergence has its origin in other propositions, on which the courts are somewhat divided.
It has been held in a few jurisdictions that, if the plaintiff allege a joint liability, he must sustain the allegation by proof, *1295
or fail. Livesay v. First Nat. Bank,
This rule has the support of the great weight of authority, as a careful reading of the following decisions from other jurisdictions will disclose: Sweet v. Perkins,
Our attention is called by appellant to a few decisions of this court and of other jurisdictions, which, it is claimed, announce a different rule. The apparent conflict in nearly all of the cases which are referred to, and which will be presently cited, really disappears when the facts upon which the respective decisions are rested are carefully analyzed. There is also present in the discussion of the cases relied upon the not infrequent divergent views of the writers of the individual opinions as to what constitutes concurring acts which cause an injury to an innocent person, for which liability may be shown. Among the decisions of this court cited by counsel are Harley v.Merrill Brick Co.,
In each of the cited cases, the acts charged were wholly independent of each other, and without concurrence or concert. They each deal with alleged nuisances. While this may not be a distinct basis for differentiation in the rule, it does somewhat illustrate the distinction between the doctrine of the cases relied upon by appellant and those holding to the rule of joint and several liability, previously referred to. Nuisance cases have apparently been given a separate classification. To like effect, and as illustrative of the distinction, are the following decisions from other jurisdictions: Brose v. Twin Falls Land Water Co., 24 Idaho 266 (133 P. 673); Bonte v. Postel,
The question here to be decided is, Was there such concurrence of negligent acts on the part of appellant and Max Padzensky which united and concurred to produce the injury complained of, as to render them jointly or severally liable? We think there was. The jury may well have found that both *1297 defendants were negligent, and it must have found that, but for the concurrence of such negligence, the injury to appellee could not possibly have happened.
It was said by the New York Court of Appeals in Sweet v.Perkins,
"Where concurrence in causes is charged, the test is, simply, could the accident have happened without their co-operation?"
The injury in this case was indivisible. There was no possible way by which it could be said that the negligence of one or of the other of the defendants was the sole or proximate cause thereof.
It is quite strenuously urged by appellant that numerous decisions of this court, in addition to those already referred to, sustain his contention. The first case referred to is Ramseyv. Cedar Rapids M.C.R. Co.,
Neither Heisler v. Heisler,
In Tackaberry Co. v. Sioux City Service Co.,
The implication sought to be drawn by appellant from Daggy v.Miller,
The conclusion reached in the court below, that the accident was caused solely by reason of the combined and concurrent negligence of the appellants Robinson and Max Padzensky, and that, but for such combined and concurrent negligent acts, the injury would not have happened, cannot be avoided.
II. Many other rulings of the court, including exceptions to numerous paragraphs of the court's charge to the jury, are assigned as error, and relied upon for reversal. Most of the propositions thus urged are disposed of by what 2. EVIDENCE: has already been said. An opinion was previously admissions: filed in this case, and a rehearing granted. For nonconcerted former opinion, see McDonald v. Robinson, 218 N. action of W. 625. In the former opinion, we held that the tort- admission of the testimony of certain witnesses feasors. to statements made by Max Padzensky, the driver of the car which struck appellee, to the effect that he had either to collide with her or with a tree near by, was reversible error. According to the testimony of one of the witnesses, Max Padzensky said:
"I could hit the tree or hit her. If I hit the tree, might kill myself, and if I hit her, might knock her out of the way."
The theory, of course, upon which this testimony was objected to by appellant was that there was a misjoinder of parties and of causes of action, and that it was in no respect binding upon them, and could not be received for the purpose of proving a joint tort.
Upon a careful reconsideration of the question presented, we have reached a different conclusion. In the first place, the evidence was clearly not prejudicial to appellant Robinson. Instead of inculpating, its full force was to exonerate him from blame. It tended to prove that appellee was voluntarily struck by the driver of the Padzensky car, in order that he might avoid serious or fatal injury to himself. The mere statement of the rule of joint and several liability of two or more joint wrongdoers carries its own refutation of the contention of appellant. Appellee was not bound to prove a joint wrong, in order to recover separately against a particular defendant. She was entitled, *1299 under the doctrine of joint and several liability, to prove her case against each, as well as both. To do this, she had a right to prove what each did or said, as affecting his joint liability. The court in its instructions fully protected the appellants. The jury was told that the alleged statements, if any were made by Max Padzensky, were in no respect binding upon the appellant. The jury could not have been in any way misled or prejudiced against the appellant Robinson because of the admission of this testimony.
III. The court admitted certain incompetent testimony of expert medical witnesses, which was subsequently 3. APPEAL AND withdrawn. In this connection, and in the ERROR: court's charge to the jury, the jury was harmless admonished to disregard this testimony and give error: it no consideration or weight. The testimony was withdrawal not inherently prejudicial in character, but the of witness was incompetent to testify on the point. incompetent are satisfied that the error was without evidence. prejudice.
Dr. Ladd, who was appellee's attending physician, was permitted to answer hypothetical questions. These questions were propounded after he had described the injuries to appellee. It is urged that the admission of this testimony was error. To 4. EVIDENCE: sustain this contention, counsel cites Watson v.
opinion Boone Elec. Co.,
Complaint is also made of the court's statement of the issues to the jury. The statement included practically all of the allegations of the petition and answer. This method of submitting the issues to the jury has often been 5. TRIAL: criticized, but a careful reading of the instruc- pleadings in this case shows that they were tions: carefully and clearly phrased, and without the stating inclusion of excessive verbiage or the recital issues by of unnecessary ultimate facts. The instructions copying which followed were singularly clear and pleadings. explicit, and it is difficult to perceive how the jury could have been in any way prejudiced or misled by the method adopted for submitting the issues. *1300
The complaint that issues wholly without support in the evidence were submitted to the jury is without merit. There was evidence tending to sustain the allegations of the petition. Whether sufficient or not to do so, was for the jury to determine; and, under the instructions given, there is no reason to believe that appellant was not given a fair trial.
Other alleged erroneous rulings of the court are assigned by counsel, many of which are not referred to in argument. We have examined and considered each and all of them, and have discussed each of the propositions relied upon which merits particular consideration. We find no reversible error in the record, and the judgment of the court below is — Affirmed.
ALBERT, C.J., and EVANS, FAVILLE, MORLING, KINDIG, and WAGNER, JJ., concur.