Cox v. Vernieuw, 5082

Decision Date08 January 1980
Docket NumberNo. 5082,5082
Citation604 P.2d 1353
PartiesWilliam R. COX, Donna Paxton, Cathleen Paxton Riley, and Sandra Venta, Appellants (Plaintiffs below), v. Raymond John VERNIEUW and Weber Western General Dairies, Inc., Appellees(Defendants below).
CourtWyoming Supreme Court

Robert J. Pickett and Harley J. McKinney of Pickett, McKinney & Smith, Rock Springs, for appellants.

Ford T. Bussart and John D. Rossetti of Greenhalgh, Bussart, West & Rossetti, Rock Springs, for appellees.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

THOMAS, Justice.

The only issue meriting discussion in this case is whether the defense premised upon an Act of God is proper in a case in which recovery is sought on a negligence theory. In this instance the asserted Act of God was a physical defect of the driver of a motor vehicle. The trial court did instruct the jury on the Act of God defense in the case of the appellant Cox, and in the non-jury trial in the other appellants' cases the court found that the accident was a result of an Act of God. We shall hold that the defense of an Act of God became the law of the case as to Cox because no objection was made to the instruction. With respect to the other appellants we shall hold that a physical defect is not within the definition of an Act of God, and we shall expand the issue to encompass a rule that the defense of an Act of God should not be considered in any case in which recovery is sought upon a theory of negligence. In such a case the defense of an Act of God is superfluous. We will affirm the judgments for the defendants.

The appellee Vernieuw was employed by the appellee Weber Western General Dairies, Inc., as a truck driver. On May 4, 1976, Vernieuw made his customary run from Ogden, Utah, to Rock Springs, Wyoming, driving a truck tractor pulling a semi-trailer. He delivered a load of packaged milk to the Cream of Weber Dairy in Rock Springs. He unloaded part of the milk in his trailer, and then helped another driver, who came from Riverton, to unload milk from his truck. After this was accomplished they switched trailers so that Vernieuw could take the empty trailer from Riverton back to Ogden. The Riverton driver took the partially empty trailer to Rawlins, where the rest of the load was dropped, and he then returned to Riverton.

The circumstances surrounding the injuries to the appellants are colorful to the point of being bizarre. Vernieuw pulled away from the Cream of Weber dock with the empty trailer, and traveled in an easterly direction toward Center Street in Rock Springs. He entered Center Street without stopping, and collided with a vehicle driven in a southerly direction by the appellant Sandra Venta. These vehicles became entangled, and the Venta vehicle was carried on the front of Vernieuw's tractor until it ultimately collided with the wall of the Montgomery Ward building, which it penetrated. Vernieuw's truck carried the Venta vehicle clear across Center Street where he drove up on the curb in front of the Safeway store, and then made generally a right turn back across Center Street before striking the Montgomery Ward store. During the course of this short journey Vernieuw's truck struck another vehicle, which was owned and driven by the appellant Riley, and in which the appellant Paxton was a passenger, causing damage to that vehicle and injuries to the occupants. The truck also collided with and damaged two other vehicles. When the truck crashed through the side of the store it pinned the appellant Cox against some stereo sets in the appliance department of the store.

Vernieuw testified that he lost consciousness about 40 feet before he entered Center Street, and that he did not regain consciousness until after his vehicle had come to a stop within the Montgomery Ward store. The record discloses no reason to discount Vernieuw's testimony in this regard. The testimony of Vernieuw's treating physicians was that this loss of consciousness was attributable to a lack of oxygen in his brain because of an intermittent heart block.

The history of the cause of Vernieuw's loss of consciousness is fascinating. In August of 1972 Vernieuw suffered an episode which a physician described as a grand mal seizure. The history of that episode as it was given to the physician fit that diagnosis and Vernieuw also was observed in the throes of a second such seizure while in the emergency room of the hospital. The physician said that definitely was a full-blown grand mal seizure. Further investigation was done by both a neurosurgeon and a cardiologist. The cardiologist at that time noted a prolongation of a conduction of electrical impulses through the heart, but it was described as being very minimal. One physician testified that usually this has no effect on the heart. Vernieuw's condition was diagnosed as being neurological in nature, and he was placed upon a common prescription for the treatment of such conditions.

At that time the physician instructed Vernieuw not to drive, and he was transferred to a different job by Western General Dairies which did not encompass driving vehicles as part of his duties. Vernieuw had no further dramatic episodes until the accident. There was an indication by one physician that in some intervening examinations Vernieuw reported "funny episodes" or dizziness as having occurred. None of these involved loss of consciousness. He did work at his job on a daily basis, and his supervisor testified that he had no problems of a similar nature on the job. Subsequently a driving position became available, and because of Vernieuw's desire to return to duty as a truck driver he was sent to a physician by Western General Dairies to be examined pursuant to Interstate Commerce Commission regulations. This physician was the doctor to whom employees of Western General Dairies normally were referred by the company, and the manager of the operations in Ogden called the doctor and instructed him to give Vernieuw a very careful examination because of the episode in 1972 which the manager described as a blackout problem. After this examination Vernieuw was cleared to drive by the doctor, and he resumed his truck driving duties in 1975. Subsequently he was assigned to the Rock Springs run.

After the accident additional medical evaluations were made of Vernieuw. These resulted in an ultimate diagnosis by a cardiologist that Vernieuw suffered from intermittent heart failure. When such a condition is present electrical impulses normally functioning in the heart do not travel in a normal time frame, and the heart beat slows down or stops temporarily thus depriving the brain of oxygen. The cardiologist testified that he was able to diagnose this condition based upon a special electrocardiogram made inside the heart which is called a "His bundle recording." This procedure is accomplished through a heart catheterization, and it measures the time for electrical activity to travel through the lower portions of the heart. The cardiologist testified that the tests by which he made his diagnosis were quite sophisticated and were not available in the State of Utah in 1972. The treatment of Vernieuw's condition then was to install a pacemaker for the purpose of correcting the slow transmission of the electrical impulses and thereby avoid blackout spells.

The record still leaves the situation inconclusive because Vernieuw did suffer a seizure while in the hospital following the installation of the pacemaker. One physician attributed that to the fact that he was taken off the medication for the neurological problem after the installation of the pacemaker, and this resulted in a seizure which dislodged the pacemaker. Another doctor felt that the pacemaker had malfunctioned, and the failure of the pacemaker caused the seizure. The doctors were in accord, however, that on the basis of the medical information available at the time of the seizure in 1972 and the follow-up diagnosis and treatment there was no reason based upon existing or potential cardiac disease to advise Vernieuw not to drive a motor vehicle or to limit his activities in any way. The cardiologist who made the diagnosis of intermittent heart failure, after reviewing the medical records relating to Vernieuw, testified that he would not have instructed Vernieuw not to drive in 1972 because of any cardiac problem.

The appellants pursued their causes against Vernieuw and his employer upon the theory that it was negligent conduct to permit Vernieuw to drive the motor vehicle given his medical history of a prior blackout, which they contended should have been cause to anticipate a reoccurrence. Vernieuw and his employer took the stance that Vernieuw's blackout at the time of the accident was from a medical problem which they had no reason to anticipate. They urged that the situation was encompassed by the Act of God rule, and at the trial the district court did give instructions espousing that theory in the following form:

"INSTRUCTION NO. 3

"Defendants have denied any negligence or liability and have alleged that if Plaintiff was injured and sustained any damages, such injury and damages were due to a series of events or circumstances not within the control of either Defendant. Defendants must prove, by a preponderance of the evidence, that any injuries and damages sustained by Plaintiff resulted from an act of God, which was the sole, direct cause of the accident.

"INSTRUCTION NO. 7

"The law recognizes that some accidents are caused by what is termed an act of God. An injury to person or property caused directly and exclusively by natural causes, without human...

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13 cases
  • Martinez v. City of Cheyenne
    • United States
    • Wyoming Supreme Court
    • May 4, 1990
    ...instruction was improper although perhaps for different reasons than those espoused by the State and the trial court. In Cox v. Vernieuw, 604 P.2d 1353 (Wyo.1980), we held that an "act of God" defense is superfluous in a negligence case and should not be considered. The rationale was that "......
  • Randle v. Allen, 900189
    • United States
    • Utah Supreme Court
    • October 8, 1993
    ...(1964); Camaras v. Moran, 100 R.I. 717, 219 A.2d 487 (R.I.1966); Hunter v. Johnson, 178 W.Va. 383, 359 S.E.2d 611 (1987); Cox v. Vernieuw, 604 P.2d 1353 (Wyo.1980) (act of God defense not appropriate in negligence Heretofore, the law in Utah has been that an unavoidable accident instruction......
  • Mostert v. CBL & Associates
    • United States
    • Wyoming Supreme Court
    • August 14, 1987
    ...of culpability reaches the same result. When the true cause of this unfortunate loss is considered in the context of Cox v. Vernieuw, Wyo., 604 P.2d 1353 (1980), there is additional reason to conclude that no negligence was committed by American Multi Cinema, I am so suspect of the wisdom o......
  • Ely v. Kirk, 85-32
    • United States
    • Wyoming Supreme Court
    • September 12, 1985
    ...of man; and that for the act of God defense to be available, the act of God must be the sole cause of the injury. In Cox v. Vernieuw, Wyo., 604 P.2d 1353, 1359 (1980), we "* * * [W]e would expand the issue to the end that we would hold that the Act of God defense should not be applied in a ......
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