Brantley v. Couch

• Decision Date: 20 October 1964
• Docket Number: 31523,Nos. 31522,s. 31522
• Citation: 383 S.W.2d 307
• Parties: Anne BRANTLEY, Plaintiff-Appellant-Respondent, v. David COUCH, Defendant-Appellant, and Oscar Thompson, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 307

383 S.W.2d 307

Anne BRANTLEY, Plaintiff-Appellant-Respondent, v. David COUCH, Defendant-Appellant, and Oscar Thompson,

Defendant-Respondent.

Nos. 31522, 31523.

St. Louis Court of Appeals, Missouri.

Oct. 20, 1964.

Motion for Rehearing or for Transfer to Supreme Court Denied

Nov. 17, 1964.

Hullverson, Richardson & Hullverson, Corinne Richardson, James E. Hullverson, St. Louis, for plaintiff-appellant-respondent.

Heneghan, Roberts & Cole, John J. Cole, St. Louis, for defendant-appellant.

Gray, Sommers & Jeans, James W. Jeans, St. Louis, for defendant-respondent.

DOERNER, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff in a chain collision between three in-line automobiles driven by John Eftink, Oscar Thompson, and David Couch, respectively. Plaintiff sued all three drivers, but preceding the trial defendant Eftink's motion for summary judgment was sustained. The jury returned a verdict in favor of plaintiff and against both remaining defendants for $4,000, and judgment was entered in accordance therewith. Thereafter each defendant filed a motion to have the judgment set aside and to have judgment entered in his favor in accordance with his motion for a directed verdict filed at the close of all the evidence, or in the alternative, for a new trial. The court sustained the motion of defendant Thompson to set aside the judgment against him and enter judgment in his favor and for a new trial; and overruled the alternative motions of defendant Couch. Plaintiff appealed from the judgment entered in favor of defendant Thompson and from the order granting him a new trial. Defendant Couch appealed from the judgment against him, and has also attempted to appeal from the judgment in favor of defendant Thompson.

The two collisions here involved occurred on August 9, 1961, somewhere between 9:00 and 10:00 P.M., at the intersection of Gravois and Dahlia Avenues, in the City of St. Louis. At that point Gravois is six lanes wide, but because cars were parked on both sides there were only two eastbound lanes and two westbound lanes available for travel. It was or had been raining and the streets were wet. The three automobiles being driven by Eftink, Thompson, and Couch were all proceeding eastwardly on Gravois, in that order, in the lane next to the centerline. The first collision occurred when the Eftink car, which had been brought to a stop at Dahlia in obedience to a stoplight, which changed from green to amber, was struck from the rear by the Thompson car. Shortly thereafter Thompson's automobile was struck from the rear by the Couch car. Plaintiff, one of numerous passengers in the Thompson station wagon, sustained what is commonly called a whiplash injury to her neck.

With that brief statement of the evidence, to be augmented as required, we turn first to a consideration of plaintiff's appeal. As might be expected, plaintiff's initial assignment is that the court erred in sustaining defendant Thompson's motion for judgment in accordance with his motion for a directed verdict. In that connection it is important to note that the court did not sustain Thompson's after-trial motion for judgment on both of the grounds contained in his motion for a directed verdict, but only on specification 2. That specification read:

'2. That under the law and the evidence, neither the acts or the omissions of Oscar Thompson were the proximate cause of any injury to the plaintiff.'

The first specification, which was not sustained by the court, read:

'1. That under the law and the evidence, defendant Oscar Thompson was not negligent.'

In effect, then, the court ruled that the evidence was sufficient to submit to the jury the issue of Thompson's negligence, but that the evidence was not sufficient to show that Thompson's negligence was the (or a) proximate cause of plaintiff's injury. We emphasize this aspect of the court's ruling because able and industrious counsel for plaintiff and defendant Thompson have devoted a considerable portion of their briefs to a discussion of whether or not Thompson's negligence was a proximate cause of the second collision between the Thompson and Couch automobiles. Of course, if all of the evidence established that plaintiff's injury resulted solely from the second impact, between the Thompson and Couch cars, then in order to recover against Thompson it would be necessary for plaintiff to show that Thompson's negligence was the sole, or at least a concurring, cause of the second collision and plaintiff's consequent injury. Seeley v. Hutchinson, Mo., 315 S.W.2d 821; Matthews v. Mound City Cab Co., Mo.App., 205 S.W.2d 243; See v. Kelly, Mo.App., 363 S.W.2d 213. Or if the two accidents were widely separated as to time and distance, and it was possible to identify with some definiteness the injuries suffered in each, the burden of proving in which accident an injury was sustained would be on the plaintiff. Sparks v. Ballenger, Mo., 373 S.W.2d 955.

But a different rule applies where two or more persons acting independently are guilty of consecutive acts of negligence, closely related in point of time, which cause an indivisible injury; that is, an injury which the triers of fact decide they cannot reasonably apportion among the negligent defendants. According to the weight of authority, in such a case the tort-feasors are jointly and severally liable for all of the damages. The rule is stated in 38 Amer.Jur., Negligence, Sec. 257, pp. 946, 947, as follows:

'* * * According to the great weight of authority, where the concurrent or successive negligent acts or omissions of two or more persons, although acting independently of each other, are, in combination, the direct and proximate cause of a single injury to a third person, and it is impossible to determine in what proportion each contributed to the injury, either is responsible for the whole injury, even though his act alone might not have caused the entire injury, or the same damage might have resulted from the act of the other tort-feasor, and the injured person may at his option or election institute suit for the resulting damages against any one or more of such tort-feasors separately, or against any number or all of them jointly. The injured person is not compelled to elect between the tort-feasors in invoking a remedy to obtain compensation. * * *'

And see: Matthews v. Mound City Cab Co., Mo.App., 205 S.W.2d 243; Maddux v. Donaldson, 362 Mich. 425, 108 N.W.2d 33; Ruud v. Grimm, 252 Iowa 1266, 110 N.W.2d 321; Murphy v. Taxicabs of Louisville, Inc., Ky., 330 S.W.2d 395; Reed v. Mai, 171 Kan. 169, 231 P.2d 227; Micelli v. Hirsch, Ohio App., 83 N.E.2d 240; Restatement, Torts, Vol. 4, Sec. 879, p. 446; 65 C.J.S. Negligence Sec. 102, pp. 639-645; Cooley, Torts, (4th Ed.), Sec. 86, pp. 279, 280; Harper and James, The Law of Torts, Sec. 10.1, p. 692; Wigmore, Joint-Tortfeasors and Severance of Damages, 17 Ill.L.R. 458; Prosser, Joint Torts and Several Liability 25 Cal.L.R. 413. As the foregoing cases illustrate, the doctrine is particularly applicable in automobile chain collision cases.

All of the medical testimony was to the effect that the plaintiff sustained a single, indivisible injury, the whiplash to her neck. Doctors B. T. Forsyth and S. M. Rifkin so testified for the plaintiff, as did Dr. Henry Lattinville, who had examined plaintiff on behalf of both defendants but was called to the stand by defendant Couch alone. The evidence was sufficient to show that defendant Thompson's negligence was the proximate cause of the first collision. Assuming, as he contends, that his negligence did not contribute to cause the second collision, the precise question presented, so far as plaintiff's appeal is concerned, is whether there was sufficient evidence from which the jury could reasonably find that plaintiff's indivisible injury was the proximate result in whole or in part of the negligence of Thompson in causing the first impact. In determining that issue we review the evidence from a standpoint favorable to plaintiff, give her the benefit of any part of the defendant's evidence favorable to her and not contradicted by her own testimony or not contrary to her fundamental recovery theory, give her the benefit of the reasonable inferences from all the evidence, and disregard all of defendant's evidence unfavorable to plaintiff. Terminal Warehouses of St. Joseph, Inc. v. Reiners, Mo., 371 S.W.2d 311, Sperry v. Tracy Dodge-Plymouth Co., Mo., 344 S.W.2d 108.

On direct examination plaintiff testified that the time between the first impact and the second '* * * was just a matter of a second, just real short time'; that when she felt Thompson apply his brakes she looked up and saw the Eftink car less than a car length away she leaned forward a little and the impact '* * * moved me forward just a little'; that the impact was slight; that she couldn't say whether or not her head and neck were snapped by the first impact; that the second impact, was from the rear, of terrific force, and that she was thrown back in the seat; that immediately thereafter she had quite a bit of pain in her head and was dazed; and that 'I can't say, (in which collision she was hurt), the other happened so fast, I can't really distinguish.' On cross-examination by defendant Thompson plaintiff agreed with a prior statement taken on the day of the accident wherein she stated that she leaned forward because she knew that Thompson was going to hit the Eftink car and that she heard a crash in the back and her neck went forward. She remembered also stating that she did not think the first impact jarred her, but she insisted, 'Well, I'm not disputing what I said, but it happened so fast as I told you that night that I can't distinguish between what happened when I was leaning forward and what happened when we were hit from the rear.' Dr. Lattinville testified that, '* * * any forward, or sideward, or backward movement of the neck, a...