Holtz v. Holder

• Decision Date: 28 September 1966
• Docket Number: No. 7880,7880
• Citation: 418 P.2d 584,101 Ariz. 247
• Parties: Robert E. HOLTZ and Cynthia Ann Holtz, his wife, Appellants, v. James E. HOLDER and Carnation Company, Appellees.
• Court: Arizona Supreme Court

Page 584

418 P.2d 584

101 Ariz. 247

Robert E. HOLTZ and Cynthia Ann Holtz, his wife, Appellants, v. James E. HOLDER and Carnation Company, Appellees.

No. 7880.

Supreme Court of Arizona, In Banc.

Sept. 28, 1966.

Johnston & Gillenwater, and Joseph C. Meier, Phoenix, for appellants.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, Phoenix, for appellee James E. Holder.

Jennings, Strouss, Salmon & Trask, and Chas. R. Esser, Phoenix, for appellee Carnation Co.

UDALL, Justice.

Plaintiffs Robert E. Holtz and Cynthia A. Holtz bring this appeal from a jury award of a general verdict, rendered in favor of defendants James E. Holder and Carnation Company in a motor vehicle action, in which it is alleged that plaintiff Cynthia A. Holtz was injured as a result of the negligence of the two defendants.

On February 6, 1960, Cynthia A. Holtz was driving north on 24th Street in the city of Phoenix. She stopped for a red light, in the lane nearest the center line, at the intersection of 24th Street and Thomas Road. Defendant James E. Holder also stopped for the light in the lane immediately to the right of the plaintiff. At a short distance across the intersection, the right lane of 24th Street was partially blocked by piles of dirt, which had been placed there by a construction crew that was installing a water line along the east edge of 24th Street, thus causing the street to narrow to a single lane of traffic on the left, nearest the center line. When the light changed to green, Cynthia Holtz and James Holder both started north on 24th, but as a result of the narrowing of the street at the point of construction, there was not enough room for both cars to travel abreast, and a collision occurred between the two vehicles.

As a result of the collision the automobile driven by the plaintiff was forced in a westerly direction across the center line of 24th Street and into a pickup truck, which was facing south on 24th and was stopped in a line of cars which had been waiting for the light to change. Following the impact with the truck, plaintiff's vehicle came to rest in a crosswise direction across the lane in which she had been driving.

Plaintiff remained in her automobile after it came to a stop, and some five or ten minutes later a milk truck owned by defendant Carnation Company and being driven by one of its employees, turned north onto 24th Street from Thomas Road. As the driver of the truck approached the vehicle occupied by plaintiff, he became aware that there was little room for his truck to pass. He slowed down and proceeded to pass on the right, driving over a mound of dirt. In some manner, not clearly established by the evidence, the truck struck the car of the plaintiff before the passing maneuver was completed.

In the lower court plaintiff sought recovery for injuries allegedly received due to the negligent operation of their vehicles by defendants Holder and Carnation. Defendant Holder alleged that plaintiff had been contributorily negligent, and defendant Carnation Company generally denied plaintiff's allegation of negligence.

In the subsequent trial before a jury, an issue arose concerning the extent of injuries received in the separate collisions. Plaintiff offered testimony of her doctor to the effect it was medically impossible to determine which impact caused which injuries or whether one or the other of the collisions caused all the injuries, and that the only way to tell would have been by an examination of the plaintiff immediately after the first collision with the vehicle driven by Holder. As the case went to the jury, the evidence was in sharp conflict on the following issues: (1) was Holder negligent in the operation of his vehicle, (2) as between plaintiff and defendant Holder, had plaintiff been contributorily negligent in the operation of her car, (3) was the employee of defendant Carnation Company negligent in operating the truck, (4) were the injuries received by the plaintiff caused wholly or partially by the impact with the Holder automobile, (5) were plaintiff's injuries received wholly or partly as a result of the impact of her car with the Carnation truck?

On this appeal from a general verdict in favor of both defendants, plaintiff assigns as error the giving of two instructions and the failure to give two others.

The first instruction complained of was given on behalf of defendant Holder and reads as follows:

'You are instructed that as a matter of law defendant Carnation Company is not responsible for the injuries, if any, sustained by the plaintiff as a result of the impact between the Holder Ford and plaintiff's Buick, or the plaintiff's Buick and the Chevrolet pickup. You are further intructed that as a matter of law defendant Holder is not responsible for the injuries, if any, sustained by the plaintiff as a result of the impact between plaintiff's Buick and the Carnation milk truck. You are instructed where the evidence shows an injury may have resulted from one of two causes, but only one can be attributed to a defendant's negligence, the plaintiff cannot recover from that defendant.'

The second allegedly erroneous instruction was given on behalf of defendant Carnation Company as follows:

'You are further instructed the law of this state is when the plaintiff's injuries and damages have been a proximate result of one of several causes, but only one of such causes can be attributed to the negligence, it any, of the defendant Carnation Company, the plaintiff cannot recover. You are further instructed that if you find from the evidence that the personal injuries if any, suffered by the plaintiff Cynthia Holtz may have been the proximate result of the prior accident in which the defendant Carnation Company was not involved, or if you cannot determine from the evidence whether any injuries may have been received by the plaintiff Cynthia Holtz existed prior to the accident with the Carnation Company truck, then in either of such events, the plaintiff cannot recover and your verdict must be for the defendant Carnation Company.'

Plaintiff claims that the above instructions incorrectly state the law in a case where a plaintiff is unable to prove which defendant caused which injuries or whether all were caused by one defendant or the other. Plaintiff argues that her requested instructions No. 6 and No. 9, which were refused, contain a correct statement of the law applicable to such cases. Since we think that instruction No. 6 merely repeats the legal principles stated in No. 9, we will consider only the latter instruction. It reads as follows:

'You are instructed * * * that if you find from the evidence that the defendant Holder was negligent, and that the defendant Carnation Milk Company was also negligent, and if you further find that the plaintiff's injuries were the proximate result of the negligence of both of the defendants, then it is your duty to apportion the total amount of damages suffered by the plaintiff between these defendants, rendering your verdict against each defendant in the amount of damages that you feel each defendant caused the plaintiff, however, if from the facts of this case you feel that there is no reasonable basis upon which to apportion the damage among the defendants, then it is your duty to award plaintiffs a verdict for the full amount of their damages against the defendants and each of them.'

In view of the errors alleged with regard to the above instructions, the precise question raised on this appeal is whether two or more independent tortfeasors may be held to a joint and several liability for the entire damages or injuries suffered by the plaintiff, because of the indivisibility of the harm caused by the separate acts of negligence; or whether the negligent actors will escape liability altogether, on an application of the general rule that an independent tortfeasor is liable only for the harm caused by his act, and that a plaintiff must carry the burden of proving the extent of damage or injury caused by each tortfeasor.

The majority of courts which have been confronted with this question have found that the two or more tortfeasors involved coud be held to a joint and several liability, under a theory which has come to be known as the 'single injury' or 'single, indivisible injury' rule (discussed infra). However, in deciding whether we should adopt the rule, we must first consider what effect the case of White v. Arizona Eastern R. Co., 26 Ariz. 590, 229 P. 101, has on the matter. Apparently neither the plaintiff's nor the defendants were aware of the White case, for it has not been...