BOYLES, J. (dissenting in part).
This is an appeal by defendant Joseph W. Holt from 4 separate judgments entered for 4 plaintiffs in consolidated cases tried by Judge Breakey in Washtenaw county without a jury. Each of the 4 plaintiffs, Frank Meier, Margaret Toth, Stephen Toth (and his insurance
At the conclusion of the proofs the court filed a comprehensive opinion finding the facts, and entered judgments as follows: For Frank Meier, $5,000; for Margaret Toth, $8,500; for Stephen Toth, $4,250;
While counsel for the respective parties in their briefs have added some facts extending the findings of fact in the opinion filed by the trial court, no complaint has been made as to their inaccuracy. We agree with the trial court that, in substance, the facts are as follows:
These cases arose out of 2 automobile collisions about 6 o'clock on the morning of May 15, 1946, on US-112 near Saline. The plaintiffs Stephen Toth, Stephen Toth, Jr., Margaret Toth, and Frank Meier
Defendant Caswell testified that he was proceeding in a westerly direction on the highway and that the Toth car was 200 to 300 feet away when he first saw it. He testified that he (Caswell) went into the south lane attempting to pass some trucks which were "just crawling," westbound, when he first saw
The testimony of the defendant Holt, that he was going too fast to stop when he saw the Toth car, is enough to establish his negligence.
Where a law case has been tried by the court without a jury, we do not reverse the court's findings of facts unless the testimony clearly preponderates in the opposite direction. Eggebeen v. Red Top Cab Company of Grand Rapids, 334 Mich. 490; Meyers v. Fort, 344 Mich. 312. On our review of the record here, we agree with the trial court. The proofs support the court's conclusion that the defendant Holt was guilty of negligence which was one of the proximate causes of plaintiffs' injuries. Waterstradt v. Lanyon Dock Co., 304 Mich. 437.
Appellant challenges the joint and several judgments against him, claiming that even if his negligence
The only other question raised by appellant for reversal is that the judgments for Frank Meier, Stephen Toth and Margaret Toth were grossly excessive.
Frank Meier suffered a leg fracture requiring pegging and bone graft; the leg was in traction nearly 5 months, then required a steel brace for 6 months; he was hospitalized for 8 months, later had difficulty in walking, and lost over 1 year of work, during which time he suffered pain. Margaret Toth had 8 broken ribs, crushed chest, fractured elbow, permanent injury to elbow, was still being treated for injuries 6 years later, suffered considerable pain. Stephen Toth also suffered injuries about the face, head, eyes, requiring numerous stitches, his left hip was injured and he had a fracture of the wing of the left sacrum; he was on crutches for 3 months; suffered pain. The judgments were within the range of the proofs, and not excessive. Denny v. Garavaglia, 333 Mich. 317; Vink v. House, 336 Mich. 292; Bennett v. Hill, 342 Mich. 754.
Judgments should be affirmed.
BLACK, J. (concurring in reversal).
I agree that the trial judge did not err in finding defendant Holt guilty of actionable negligence. My inability to sign Mr. Justice BOYLES' opinion as proposed stems from
For the sake of continued and convenient understanding, appellant Holt will henceforth be termed "the second tort-feasor."
First: Assuming but not conceding guilt of causal negligence on his part, the second tort-feasor contends on strength of Frye that there is no evidence in the record on which damages stemming from his tort may be assessed. Plaintiffs, on the other hand, contend that such second tort-feasor may and should be held for all of the damages shown in evidence. They rely, as the trial judge did, on Shearman & Redfield's rule (quoted in Barkman v. Montague, 297 Mich. 538, 542; and Gleason v. Hanafin, 308 Mich. 31, 38), viz.,
"Concurrent, as distinguished from joint negligence, arises where the injury is proximately caused by the concurrent wrongful acts or omissions of 2 or more persons acting independently. That the negligence of another person than the defendant contributes, concurs or cooperates 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."
Both contentions are wrong, in my view.
Shearman & Redfield's text, especially the last 2 quoted sentences, does tend toward support of plaintiffs' claim that the second tort-feasor may of right be held for the entire damages proven as having been suffered on account of the successive yet separated torts of the defendants. However, and on careful scrutiny of authorities cited by them in support, I find that the authors had in mind the instance of successive separate torts, proximately connected with a finally applied force the result of which finally applied force is "a single indivisible injury."
Where, as here, the first tort-feasor separately causes the plaintiff to suffer an unknown or uncertain part or portion of the damages claimed by the latter, and the second tort-feasor separately causes that plaintiff to suffer the remainder of such claimed damages, the latter is responsible to such plaintiff only for the harm his tort has caused. Such is the rule to which Michigan has committed herself (Albrecht v. St. Hedwig's Roman Catholic Benevolent Society, 205 Mich. 395; Frye v. City of Detroit, 256 Mich. 466; DeWitt v. Gerard, 274 Mich. 299; DeWitt v. Gerard, 281 Mich. 676) and it fully accords with the declared views of Mr. Justice COOLEY. He said:
"Although it is not always definitely so stated the rule seems to have become generally established that, although there is no concert of action between tort-feasors, if the cumulative effect of their acts is a single, indivisible injury, which it cannot certainly
Second: The difficulty is not so much with the rule as with its application. Before us is a typical case where innocent victims of successive torts are confronted with understandable difficulty in proving by direct testimony the extent and amount of damages they have suffered on account of the last tort. We are asked to listen to protest of the last wrongdoer that he is entitled to exculpatory judgments, as a matter of law, because he has succeeded in injuring each plaintiff to uncertain if not unknown extent. Let us test this argument.
We said, in DeWitt (274 Mich. 299, 302):
"If the operator of the streetcar (the second tort-feasor) was guilty of negligence, causing injury to plaintiff, then defendant city is liable to respond in damages for the injuries inflicted by the streetcar.
"The burden is on plaintiff to show the specific injuries occasioned by the streetcar, for defendant city is not liable for any injuries occasioned by the automobile of defendant Gerard. This may be difficult, but is an issue of fact for the jury."
It is said that DeWitt is distinguishable, both from Frye and the present case, in that (quoting from DeWitt, at page 301):
"A witness who saw plaintiff as he lay on the pavement on his left side after he was struck by the automobile testified that he saw no blood but that
The Court did not note in its opinion that the same witness also testified, with respect to his failure to see blood as the plaintiff lay on the pavement prior to being struck by the streetcar, as follows:
"Q. So the left side of his face and the front of his face you could not see at all, could you?
"Q. So that if he had a cut in his left temple at that time you could not see at all, could you?
"Q. And if it were bleeding you would not know it, would you?
My purpose in pointing up the quoted testimony is to show that it is just as susceptible to inference that the cut (from which all bleeding was ultimately traced) may well have started to hemorrhage between blows without the fact being known or visible so far as the witness was concerned, and that the asserted distinction between Frye and DeWitt — which counsel for appellant advance with ability and vigor — is so tenuous as to suggest a more direct and forthright course.
This does not mean that the question is always one of fact. Indeed, it is easy to conceive the case of chain vehicular pile-up where, as a matter of law, the last or next to last negligent motorist is shown as having caused no damage to the precedently injured plaintiff. We should hold, on the facts presented here, only that the parties are entitled to determination by the trier of facts of the amount of damages, if any be found by him, each plaintiff has apparently suffered on account of the second tort-feasor's negligence. To make it plain, the fact that the second tort-feasor's car collided with the one occupied by the plaintiffs and did so with some little violence, combined with the fact that each plaintiff was found injured thereafter, should bring into play the judicially-healthy rule I shall now consider.
The path for these cases was cleared many years ago by distinguished forefathers sitting here. But yesterday we quoted (Ruediger v. Klink, 346 Mich. 357) the essence thereof from Allison v. Chandler, 11 Mich. 542, 554-556. Once a tort is shown with inferential
The history of Michigan's leadership in this field will be found in Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563 (51 S.Ct. 248, 75 L ed 544) (quoted in Federal Gravel Co. v. Detroit & M.R. Co., 263 Mich. 341, 357). Mr. Justice Sutherland, writing for the court, said:
"Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise." (Citing and analyzing cases including Allison v. Chandler, 11 Mich. 542; and Gilbert v. Kennedy, 22 Mich. 117.)
Allison summarizes this way (p 555 of report):
"The law does not require impossibilities; and cannot, therefore, require a higher degree of certainty
Gilbert puts it this way (p 131 of report):
"There is no sound reason in such a case, as there may be, to some extent, in actions upon contract, for throwing any part of the loss upon the injured party, which the jury believe from the evidence he has sustained, though the precise amount cannot be ascertained by a fixed rule, but must be matter of opinion and probable estimate. And the adoption of any arbitrary rule in such a case, which will relieve the wrongdoer from any part of the damages, and throw the loss upon the injured party, would be little less than legalized robbery."
Turning finally to the ultimate substance of Story (p 562 of report), we may with propriety say this of the cases before us:
It is true that there was uncertainty as to the extent of damage suffered by the respective plaintiffs on account of the second tort-feasor's negligence, but none as to the prima facie fact of damage; and there is a clear distinction between the measure of proof necessary to establish the fact that each of these plaintiffs sustained some damage as a result of the second tort-feasor's negligence, and the measure of proof necessary to enable the trier of facts to fix the amount of such damage. Story concludes discussion this way (pp 565, 566 of report):
"The constant tendency of the courts is to find some way in which damages can be awarded where a wrong has been done. Difficulty of ascertainment is no longer confused with right of recovery."
"The difficulty of proof in assessing such separate damages has received frequent mention in all these cases, but it is not regarded as sufficient justification for entire liability. The emphasis is placed upon the logical possibility of apportionment, and the separate invasion of the plaintiff's interests which may be traced to each cause. The difficulty may have been overstated. The courts necessarily have been very liberal in awarding damages where the uncertainty as to their extent results from the nature of the wrong itself."
What has been said means that enlightened courts cannot hear, above the victim's righteous prayer for relief, screams of the convicted wrongdoer that he is being hurt by the uncertainties of conjecture and speculation. It is enough to say that his wrong is the cause of the very uncertainty of which he complains and that he should bear the consequences in stoical silence. If we do not have sufficient courage to say just that, then the only remaining alternative — consistent with justice of course — is the one to which the supreme court of California has turned (Summers v. Tice, 33 Cal.2d 80 [199 P.2d 1, 5 ALR2d 91]; Finnegan v. Royal Realty Co., 35 Cal.2d 409 [218 P.2d 17]), that of shifting the burden of proving apportionment of damages in these successive or simultaneous injury cases to the wrongdoer defendant or defendants.
Third: Lest there be too much fretful lamentation over the projected passing of Frye's rule of instructed absolution, reference is made to a separate
The foregoing indicates full agreement with Mr. Justice BOYLES' observation that there can be, and were in each of the cases before us (on favorable view), 2 proximate causes of the injuries and damages shown in evidence. When we so affirm, however, our assigned work in these cases is not finished. We must, or at least should, reason out the legal extent of appellant Holt's liability to the respective plaintiffs. I have attempted so to do in the foregoing opinion.
Since the trial judge assumed to hold defendant Holt responsible for all damages claimed by such plaintiffs, distinguished from the portion Holt's negligence inferentially caused, I would reverse for partial retrial devoted to determination of the
The present judgments as against defendant Caswell should not of course be disturbed. Caswell, the first tort-feasor, has not appealed. Appellant Holt should recover costs of this appeal.
I concur in the view of Mr. Justice BOYLES that the trial court was not in error in holding (1) that both defendants, Caswell and Holt, were guilty of negligence, (2) that plaintiffs were free from contributory negligence, (3) that defendant Caswell's negligence was a proximate cause of plaintiffs' injuries, and (4) that there can be 2 or more proximate causes of a single injury. That holding, however, is not, in my opinion, completely dispositive of the case because it leaves unanswered 2 controlling questions with respect to the liability of defendant Holt, the second tort-feasor, i.e., (1) was there any competent evidence to be considered by the trier of the facts which tended to prove, inferentially or otherwise, that Holt's negligence was a proximate cause of plaintiffs' injuries or any part or aggravation of them, and (2) if so, is Holt liable for any greater proportion of plaintiffs' damages than the evidence shows resulted from his negligence as determined by the trier of the facts?
I agree with Mr. Justice BLACK that the questions of the second tort-feasor's liability and of the extent thereof in this case are not settled by the quotation from Shearman & Redfield
Undoubtedly, Allison v. Chandler, 11 Mich. 542; Gilbert v. Kennedy, 22 Mich. 117; and Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555 (51 S.Ct. 248, 75 L ed 544), are authority for the salutary rule that plaintiff's right to recover will not be denied because of difficulty of accurately measuring his damages or ascertaining the amount thereof with certainty, that the law requires no more proof of the amount of plaintiff's damages than the nature of the case will fairly permit, and that it is enough if the evidence shows the extent of the damages as a matter of just and reasonable inference, even though the result be only approximate, in which case it is competent for the jury or trier of the facts to form such reasonable and probable estimate of the damages as in the exercise of good sense and
"The rule which precludes the recovery of uncertain damages applies to such as are not the certain result of the wrong, not to those damages which are definitely attributable to the wrong and only uncertain in respect of their amount." (Italics supplied.)
If there is competent evidence showing, or from which a reasonable inference may be drawn, that the negligence of the second tort-feasor was a proximate cause of plaintiffs' injuries or any part or aggravation of them, that evidence should go to the trier of the facts for determination, no matter how difficult, of that question of fact (DeWitt v. Gerard, supra) and, if it finds in the affirmative, for determining which or what part of them and fixing the amount of the damages. (Cases above cited.) If there is no such evidence, the case should not go to a jury to guess or speculate on the question, but, instead, the case should be dismissed by the court as to the second tort-feasor. Frye v. Detroit, supra. Whether there is such evidence is not a question of fact for the jury, but of law for the court. Druse v. Wheeler, 26 Mich. 189; Curry v. Traver-Bird Co., 167 Mich. 17, 21; Boudeman v. Arnold, 200 Mich. 162 (8 ALR 789); American Insurance Co. of Newark v. Martinek, 216 Mich. 421; Frye v. Detroit, supra. Furthermore, the question for the court is not merely whether there is literally no evidence, but whether there is any upon which a jury can properly find
The trial court here found that the second tort-feasor was guilty of negligence which was a proximate cause of plaintiffs' injuries. I do not agree with counsel for the second tort-feasor that, under Frye, we are constrained to hold that there was no evidence proving or from which an inference could be drawn that his negligence caused some part or aggravation of plaintiffs' injuries. In my view there was present here, as in DeWitt, evidence to go to the trier of the facts upon which to make a determination of that question. I concur, therefore, with Mr. Justice BLACK in reversing judgments against defendant Holt, awarding him costs of appeal, and remanding for taking further proofs, if necessary, and determining, in accord herewith, the amount and proportion, if any, of plaintiffs' damages proximately caused by defendant Holt's negligence and entering judgments against him accordingly. Authority for such apportioning of liability between 2 successive tort-feasors is to be found in Rodgers v. Canfield, 272 Mich. 562.
SHARPE, KELLY, and CARR, JJ., concurred with DETHMERS, C.J.
SMITH, J., did not sit.
EDWARDS, J., took no part in the decision of this case.
The first collision — of cars driven by Toth and Caswell — was head to head. This collision left the Toth car, with Mr. and Mrs. Toth still occupying it, crosswise on the highway with right side facing the direction of Holt's approach. The front end of Holt's car thereupon struck the right side of Toth's car. Mr. Toth thereafter found himself lying on the shoulder of the highway.
As to injuries inferably sustained by Mrs. Toth on account of the second collision, we find that the following statements taken from brief of her counsel are fairly sustained by the record:
"It was on the right side that Mrs. Toth was sitting. She sustained a serious and permanent injury to her right elbow; her right chest was crushed and 8 ribs were broken. That such injuries were not received in the first collision is inferable, at least, from the fact that none of the usual injuries found after head-on collisions is present — they were all on her side, nearest the point of impact with Holt car." (Italics by counsel.)