Arnst v. Estes

• Decision Date: 13 September 1939
• Parties: ARNST v. ESTES et al.
• Court: Maine Supreme Court

8 A.2d 201

ARNST

v. ESTES et al.

Supreme Judicial Court of Maine.

Sept. 13, 1939.

[Copyrighted material omitted.] On Motion and Exceptions from Superior Court, Somerset County.

Action by Harold E. Arnst against Charles L. Estes and Thomas B. Harper, for injuries to plaintiff's person and property claimed to have been caused by the concurrent negligence of defendants in operating their automobiles, wherein a judgment of nonsuit was entered as to the first-named defendant at the close of plaintiff's evidence, and a verdict was thereafter returned in favor of plaintiff against the last-named defendant. On general motion for new trial and exception by the last-named defendant.

Exception overruled, motion sustained, and new trial granted.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Gower & Eames, of Skowhegan, and Frederick P. Hanford, of Stoneham, Mass., for plaintiff.

F. Harold Dubord, of Waterville, for defendant Harper.

Locke, Campbell & Reid, of Augusta, for defendant Estes.

DUNN, Chief Justice.

The plaintiff brought his action for tort against two defendants, namely, Charles L. Estes and Thomas B. Harper. He averred that they were owners and operators, respectively, of a taxi and an automobile, and that, though their duties to him were adverse and disconnected, yet their several neglects, concurred and united together, had been the efficient cause of injury to himself personally, and of damage to his property. He alleged the asserted wrongdoers jointly and severally liable to him in damages.

He amended his declaration, before the case was put on trial, by striking out all reference to several negligence. The defendants filed separate pleas of the general issue, and each set up that the negligence of the other defendant, not his, caused the accident. Contributory negligence was not in issue.

After plaintiff had put in his evidence, and rested his case, defendant Estes' lawyer moved, in his behalf (the grounds of the motion are not in the record), judgment ot nonsuit. The plaintiff, and as well defendant Harper, through their lawyers, interposed objection.

The motion was granted. Judgment of nonsuit was entered. Both plaintiff and defendant Harper reserved exception.

The trial proceeded, as to defendant Harper alone, to verdict against him.

His exception, and general motion for a new trial, have been argued. The plaintiff, on gaining the verdict, did not perfect the exception he had caused to be noted.

Under liberal rules as to joinder, defendants whose negligences coalesced to produce a single result have been joined in one action, and have become at once, by rather inaccurate usage, "joint tort-feasors". Feneff v. Boston & Maine Railroad, 196 Mass. 575, 82 N.E. 705; Allison v. Hobbs, 96 Me. 26, 51 A. 245; Gordon v. Lee, 133 Me. 361, 178 A. 353.

Exceptions to these rules are not here important.

Where, without concert, and although there was no common design, the negligences of two or more defendants concur in producing a single indivisible injury, such persons are jointly and severally liable for the whole damage. Brown v. Atlantic Coast Line R. Co., 208 N.C. 57, 179 S.E. 25. If each contributes to the wrong, the proximate cause is the wrongful act in which they concurrently participate. Brown v. Thayer, 212 Mass. 392, 397, 99 N.E. 237. See, too, Carpenter v. McElwain Co., 78 N.H. 118, 97 A. 560; Lavenstein v. Mails, 146 Va. 789, 132 S.E. 844; McDonald v. Robinson, 207 Iowa 1293, 224 N.W. 820, 62 A.L.R. 1419; Town of Sharon v. Anahama Realty Corp., 97 Vt. 336, 123 A. 192. It is like the instance of a man injured by falling into a hole dug partly by one person and partly by another. Churchill v. Holt, 131 Mass. 67, 41 Am.Rep. 191.

A common case is that of two vehicles which collide to the hurt of a third person. The duties which are owed to the plaintiff by the defendants are distinct, and may not be similar in character or scope, but by far the greater number of courts now permit joinder in one action. It is difficult to imagine a more typical case of what is commonly called a joint tort, than the case of two drivers who, by their simultaneous negligence, come into a collision, with harm following as a direct consequence to another. Kilkenney v. Bockius, C.C., 187 F. 382.

The causes, as the word concurring signifies, run together to the same end. Herr v. Lebanon, 149 Pa. 222, 24 A. 207, 16 L.R.A. 106, 34 Am.St.Rep. 603. The term "joint tortfeasors" is misleading, to say the least. In cases such as plaintiff declares, the tortfeasors are joint in no other sense than that they may be joined as defendants by one who has suffered injury or damage by reason of their independent but concurring wrong. The right of action arises from disconnected conduct, which concurred to consummate the injury. The liability of each defendant grows out of an entirely variant set of facts. See Judge Owen's opinion in Bakula v. Schwab, 167 Wis. 546, 168 N.W. 378.

Entire liability in concurring cases rests upon the fact that each defendant is responsible for the loss, and the absence of any logical basis for apportionment Article in 25 California Law Review, 413, May, 1937, on Joint Torts and Several Liability. A dictum in Sessions v. Johnson, 95 U.S. 347, 24 L.Ed. 596, is to the same effect. There is no yardstick with which to measure the two acts of negligence, nor scales with which to weigh them. This is the language of Winslow, C. J., dissenting, in Dohr v. Wisconsin Central R. Co., 144 Wis. 545, 553, 554, 129 N.W. 252, 255. Where two or more defendants are jointly charged for negligence, and a nonsuit is directed as to one of them, such nonsuit, even if erroneous as to the plaintiff, is not such error as may be invoked by the other defendant for a reversal. McCamley v. Union Electric, etc, Co., Mo.App, 85 S.W.2d 200; Rose v. Squires, 101 N.J.L. 438, 128 A. 880.

Literally, scores of decisions can be quoted in such connection with various grounds given for the decision.

The joint liability a declaration sets out need not be proved. Buddington v. Shearer, 22 Pick, Mass, 427, 429. In every tort of this nature, there is an independent as well as a joint liability, and a joint tortfeasor, or what in a legal sense is the same thing, one standing in the same relation as a joint tortfeasor, cannot complain that, as to his co-defendant, there has been nonsuit, discontinuance or favorable verdict. Rose v. Squires, supra; Hurley v. New York, etc, Co., 13 App.Div. 167, 43 N.Y.S. 259; Wallace v. Third Avenue R. Co., 36 App.Div. 57, 55 N.Y.S. 132; 1 Chitty, *86; Huddy, Automobile Law, 7-8, p. 372; Lindman v. Kansas City, 308 Mo. 161, 271 S.W. 516; Matthews v. Delaware L. & W. R. Co., 56 N.J.L. 34, 27 A. 919, 22 L.R.A. 261; Lovelace v. Miller, 150 Ala. 422, 43 So. 734, 11 L.R.A, N.S, 670, 14 Ann. Cas. 1139; Goekel v. Erie R. Co., 100 N.J.L. 279, 126 A. 446; 11 Encyc. Plead. & Prac, 852; 15 Encyc. Plead. & Prac, 583; 18 C.J, 1177; McCamley v. Electric Co., supra; Hefferon v. Reeves, 140 Minn. 505, 167 N.W. 423; Stith v. Newberry Co., 336 Mo. 467, 79 S.W.2d 447; Chr. Heurich Brewing Co. v. McGavin, App.D.C, 16 F.2d 334; Rhodes v. Southern R. Co., 139 S.C. 139, 137 S.E. 434; Upham v. Mickleson, Iowa, 157 N.W. 264; Wilson v. Morris & Co., 108 Neb. 255, 187 N.W. 805; Edwards v. Great Northern R. Co., 42 N.D. 154, 171 N.W. 873; Southern Hardware & Supply Co., v. Block Bros, 163 Ala. 81, 50 So. 1036; Halsey v. Minnesota-South Carolina, etc, Co., 174 S.C. 97, 177 S.E. 29, 100 A.L.R. 1; Munroe v. Carlisle, 176 Mass. 199, 57 N.E. 332; Oulighan, Adm'r v. Butler, 189 Mass. 287, 75 N.E. 726.

Logically, runs a note in the Harvard Law Review (Vol. 18, page 229), once having made his choice, an injured party cannot turn a joint into a several action, citing Wiest v. Electric, etc, Co., 200 Pa. 148, 49 A. 891, 58 L.R.A. 666, which so holds. Modern practice generally, however, considers the action both joint and several. Torts are in their nature several. 1 Chitty, supra; Hayden v. Nott, 9 Conn. 367, 371. The opinion in Matthews v. Delaware L. & W. R. Co., supra, clearly presents the majority view as to the law on the question.

A motion for a nonsuit is tantamount to a demurrer to evidence. Sykes v. Maine Central Railroad Company, 111 Me. 182, 88 A. 478. In ordering a nonsuit for insufficiency of plaintiff's evidence, the court simply declares the law applicable thereto. It says the facts proven fail to cast liability on defendant, but the court does not, nor could, attempt to determine the actual facts of the case, nor is judgment of nonsuit bar to a subsequent action for the same cause. Pendergrass v. York Mfg. Co., 76 Me. 509.

The common law rule applicable in actions of assumpsit, that if one defendant is not proved liable, the verdict must be in favor of all the defendants, does not apply in tort actions. Bakula v. Schwab, supra; Gillerson v. Small, 45 Me. 17. Where the action is on a joint contract, the statutes in this jurisdiction provide for individual judgments if the defendants are not found jointly liable. R.S, Chap. 96, Sec. 105; Day v. Scribner, 127 Me. 187, 142 A. 727.

The Davis v. Caswell case, 50 Me. 294, referred to in the brief of counsel for defendant Harper, is not opposed to this view. The Davis case holds that an action for joint trespass, meaning a trespass committed by the connected action of two or more persons, or by the action of one or more of them with the authority or assent of the others, cannot be sustained by evidence that, for his own purpose or convenience, one person went upon the premises of another without invitation, express or implied. That case is the converse of this one.

In the exception, there is no legal merit.

It is denied, under the new trial motion, that evidence sufficiently sustains a verdict for plaintiff. The ground that the verdict be set aside because of excessiveness in the award of damages, has not been argued, and is considered as...