Hansen v. Bedell Co.

• Decision Date: 11 July 1928
• Citation: 126 Or. 155,268 P. 1020
• Parties: HANSEN v. BEDELL CO. ET AL.
• Court: Oregon Supreme Court

268 P. 1020

126 Or. 155

HANSEN v. BEDELL CO. ET AL.

Supreme Court of Oregon

July 11, 1928

Department 1.

Appeal from Circuit Court, Multnomah County; Walter H. Evans, Judge.

Action by Bessie Hansen against the Bedell Company and another. Judgment of dismissal, and plaintiff appeals. Reversed and remanded, with directions.

May 8 1926, plaintiff was walking along or near the intersection between Seventeenth and Hoyt streets in Portland with her small boy. At the same time defendant, the Bedell Company, a corporation, was the owner of a truck being driven by one of its employees in a southerly direction on said Seventeenth street and the defendant Mary V. Townsend was driving her automobile in an easterly direction on Hoyt street. The automobiles of the defendants were approaching said intersection simultaneously. For the purpose of avoiding a collision, defendant Townsend swerved her automobile to the right, and the defendant the Bedell Company swerved its automobile to the left. Mary V. Townsend's mother was with her in the automobile. As a result of so swerving her car, defendant Mary V. Townsend's car climbed the curb and ran down the sidewalk, overtaking and running over plaintiff, to her serious injury. When the action was called for trial, defendant the Bedell Company, moved to require plaintiff to elect which of the two defendants she would proceed against. The court allowed the motion, and plaintiff elected to proceed against defendant the Bedell Company. At the conclusion of the testimony defendant the Bedell Company moved for a directed verdict, which was granted, and judgment was entered dismissing plaintiff's complaint and awarding to the Bedell Company costs. From said judgment plaintiff appeals, assigning as errors the order requiring plaintiff to elect between the two defendants and the order directing a verdict in favor of defendant the Bedell Company.

Thomas F. Wold and John R. Latourette, both of Portland (Latourette & Latourette, of Portland, on the brief), for appellant.

Chester Sheppard and Wendell K. Phillips, both of Portland (Burnett Bros. and Clarence J. Young, all of Portland, on the brief) for respondent.

COSHOW J. (after stating the facts as above).

One suffering damage as a result of concurrent acts of negligence of two or more persons, though acting disconnectedly, has a right of action against the negligent persons jointly and separately. First Sutherland on Damages, 267-269, note 4 § 140; Reader v. Ottis, 147 Minn. 335, 180 N.W. 117 16 A. L. R. 463, and extended annotations beginning in page 465. A very instructive case is also found in Anderson v. McLaren, 114 Wash. 33, 194 P. 828. See Ahern v. Oregon Telephone Co., 24 Or. 276, 291, 33 P. 403, 35 P. 549, 22 L. R. A. 635. It seems that the court below relied on the case of Smith v. Day, 39 Or. 531, 64 P. 812, 65 P. 1055. The case last cited might be distinguished from the case at bar, but it is not necessary to do so, because, in so far as it may be an authority for holding that a person injured by the concurrent acts of others must elect between the two in an action for damages, it is overruled. In the Smith Case there is no connection at all between the two defendants.

One of them had removed the case to the federal court before the other defendant had been served. In the instant case the two automobiles concurrently caused the injury to plaintiff. She is not compelled to elect between the two. In this regard the case of Anderson v. McLaren, above, is directly in point. See, also, the case of Jackson v. Burns, 203 Ill.App. 196. See, also, Hancock v. Steber, 208 A.D. 455, 204 N.Y.S. 258, where the principle is thus stated in point 4 of the syilabi:

"Where, though concert is lacking, separate and independent acts or negligence of several combine to produce directly a single injury, each is responsible for the entire result, even though his act or neglect alone might not have caused it."

The court erred in granting the motion to compel plaintiff to elect between the two defendants.

Was defendant the Bedell Company relieved of liability because defendant Townsend may not have used due care and caution to avoid striking plaintiff? Poole v. Tilford, 99 Or. 585, 594, 195 P. 1114. Defendant the Bedell Company was guilty of negligence as a matter of law. Its driver failed to give to defendant Townsend precedence at the intersection of the streets when under the law it was clearly its duty so to do. As was aptly said in Anderson v. McLaren, above:

"We are satisfied, also, that the transfer company, through

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