Kizer v. Hazelett

• Decision Date: 23 June 1943
• Docket Number: 27875.
• Parties: KIZER et al. v. HAZELETT.
• Court: Indiana Supreme Court

49 N.E.2d 543

221 Ind. 575

KIZER et al. v. HAZELETT.

No. 27875.

Supreme Court of Indiana

June 23, 1943

Appeal from Huntington Circuit Court; Otto J Krieg, Judge.

Arthur W. Parry and Eggeman, Reed & Cleland, all of Fort Wayne for appellants.

Chester L. Teeter and James P. Murphy, both of Fort Wayne, for appellee.

RICHMAN Judge.

Appellee was injured in a collision between an automobile owned and driven by appellant Kizer and an automobile owned and driven by her son, appellant Hazelett, in which she was riding as a guest. She sued both appellants in one paragraph alleging that Kizer's negligence and her son's willful and wanton misconduct concurred in causing her injuries without fault on her part. Each appellant filed a motion to separate the causes of action and redocket and try the same as separate causes of action which motions were overruled and errors are assigned on the rulings. The cause was tried by a jury with verdict against both appellants in the sum of $3,000 upon which judgment was entered. Each appellant filed a motion for new trial which was overruled. The errors assigned on this ruling need not be considered.

Appellee asserts that when the torts of two or more persons unite to produce an injury, such injury is indivisible and the person wronged has his remedy against one or all of the tortfeasors in a single or separate actions, citing Cleveland, C., C. & St. L. R. Co. v. Hilligoss, 1908, 171 Ind. 417, 86 N.E. 485, 131 Am.St.Rep. 258, Jackson v. Record, 1936, 211 Ind. 141, 5 N.E.2d 897. We may agree that this is the general rule, but it does not follow that the causes of action may be stated in one paragraph or that the defendants may not have separate trials. In fact it is conceded by appellee that a cause of action for negligence may not legitimately be joined in the same paragraph with a cause of action for wanton misconduct. But appellee says that the remedy is by demurrer for misjoinder of causes of action of which appellants did not avail themselves, citing § 2-1007, Burns' 1933, § 111, Baldwin's 1934, and citing further § 2-1009, Burns' 1933, § 113, Baldwin's 1934, declaring that an erroneous ruling on such a demurrer is not ground for reversal. It is manifest that if there was a prejudicial injury to the appellants in being compelled to defend in the same trial the question could not be presented to this court by demurrer for misjoinder but must be raised in some other way. We think the practice is properly defined in the case of Boonville National Bank v. Blakey, 1905, 166 Ind. 427, 76 N.E. 529, 535, where the court asserted that 'a motion for separate trial, is one which the practice recognizes, and it may be allowed for good cause.' Carpenter v. Crane, 1839, 5 Blackf. 119, decided before the adoption of the code, states that: 'The separate trial of joint defendants in actions of tort is a matter of discretion with the Court and may be allowed for good cause.' In some states there is statutory authority for such a separation. See Manley v. Paysen et al., 1932, 215 Iowa 146, 244 N.W. 863. In Malcolm v. Poland, 1939, 277 Ky. 512, 126 S.W.2d 1098, 1101, the court, citing 1 C.J.S., Actions, § 118, page 1380, says that 'generally speaking, the power of courts to grant a severance in proper cases has been recognized independent of or in the absence of any statutory authority therefor.' This seems and ought to be the rule. As in other matters where trial courts have discretion its abuse may be remedied by an appellate court. Naturally there must be some rules for guidance of trial courts in such matters and they must necessarily be found in the opinions of the courts of last resort. Appellants assert that the particular situation now confronting us has not been before either of the Indiana appellate courts and accordingly we must turn to opinions in other jurisdictions for light on the subject.

The sufficiency of the complaint was not tested by demurrer. It seems to have been assumed by all the parties until the oral argument in this court that it stated a good cause of action against both defendants. But certain questions then propounded to the parties since have had the attention of counsel for appellant Kizer who now takes the view in a citation of additional authorities that, '* * * the allegation that the defendant Hazelett, Jr., was guilty of acts of wilful or wanton misconduct, and that such misconduct on his part was the proximate cause of the collision and of Appellee's injuries, conclusively deny, as a matter of law, that any acts of mere negligence on the part of Appellant, Kizer, were a proximate cause of the collision?' While we are not required to determine this question, nevertheless it invokes certain inquiries which are material to our determination of whether or not appellants' several motions for separate trials were erroneously overruled.

The authorities are agreed that contributory negligence is no defense to an action for willful injury. This rule goes back far beyond the time of the enactment of the guest statutes. Steinmetz v. Kelly, 1880, 72 Ind. 442, 37 Am.Rep 170; Terre Haute & Indianapolis R. Co. v. Graham, 1883, 95 Ind. 286, 48 Am.Rep. 719; Brannen v. Kokomo, etc., Road Co., 1888, 115 Ind. 115, 17 N.E. 202, 7 Am.Rep. 411. 'The doctrine of contributory negligence as a defense has no application to harms intentionally inflicted by the defendant. Sometimes the courts have rationalized the result in terms of proximate causation, declaring that the plaintiff's negligence is not the proximate cause of harm intentionally inflicted. This, however, is of little assistance. The proper explanation is that the plaintiff's misconduct is not of sufficient culpability to be a bar to the action. The conduct of the parties is of two distinct levels of social and moral culpability and the one is not set off against the other.' § 150, Harper, Law of Torts. We are not inclined to dismiss too readily the theory that 'plaintiff's negligence is not the proximate cause of harm intentionally inflicted.' Whatever be the proper basis for the rule, it presents a complication in this case which can not be ignored. If we should be required to hold in a particular case that the driver of a car in which a guest was riding was guilty of willful or wanton misconduct so as to establish a liability to a guest who was injured in a collision occasioned by such misconduct, it is hard to see why the driver of the other car would be barred by his negligence form recovery against by his negligence from recovery against wanton misconduct. Where questions such as these are presented for the consideration of the jury in one trial on one paragraph of complaint, it seems to us that the opportunity for confusion is so great that as a preventative there well may be a separation of the issues and separate trials. This view was taken by the Iowa court in Manley v. Paysen, supra, and Fay v. Dorow, 1937, 224 Iowa 275, 276 N.W. 31. While perhaps there were slightly more complications in each of these cases than in the one at bar we think that the principle laid down therein is applicable and that because of the various hostilities...