Lavenstein v. Ma1le

• Decision Date: 29 April 1926
• Citation: 132 S.E. 844
• Court: Virginia Supreme Court
• Parties: LAVENSTEIN. v. MA1LE.

132 S.E. 844

LAVENSTEIN.

v.MA1LE.

Special Court of Appeals of Virginia.

April 29, 1926.

Christian, J., dissenting.

Error to Corporation Court of Hopewell.

Action by Clifford B. Maile against Harry H. Lavenstein and George Stutz. Judgment for plaintiff against the defendant first named, and he brings error. Affirmed.

J. Toomer Garrow, of Hopewell, and Jacob H. Lavenstein, of Petersburg, for plaintiff in error.

David A. Harrison, Jr., of Hopewell, for defendant in error.

CHINN, J. Clifford B. Maile brought an action, by notice of motion, against Harry H. Lavenstein and George Stutz, to recover for damage to said Maile's automobile, resulting from a collision alleged to have been caused by the negligence of the defendants. In the court below there was a judgment in favor of the defendant Stutz, and a verdict and judgment against Lavenstein, who has brought the case here upon a writ of error.

It appears that Lavenstein and Maile were driving their respective automobiles from Hopewell to Petersburg on the highway connecting those cities; Maile's car following that driven by Lavenstein at a distance variously estimated at from 30 to 50 feet. On approaching the intersection of the Petersburg-Hopewell highway with the Cedar Level road, which branched off to their right, a Ford truck, owned by said Stutz, but driven by another person whose name is not given, approached rapidly from the opposite direction, struck the left rear fender of Laven stein's car with its left front wheel, and collided violently with Maile's car, thereby causing the last-named automobile extensive damage.

Plaintiff's cause of action against Stutz was based upon the ground that at the time of the accident the Ford truck was being driven in a reckless and negligent manner; and his cause of action against Lavenstein based upon the ground that the collision between the Ford truck and his own car was caused by the previous impact between said truck and Lavenstein's car, and that the last-named collision was due to the fact that Lavenstein was negligently driving on the wrong side of the road, and thereby contributed to the damages sustained by the plaintiff.

It is assigned as error that the demurrer to the amended notice of motion should have been sustained for the reason that it did not set forth sufficient facts to charge Lavenstein with any liability in law. We think the notice was substantially sufficient; but, if any additional facts were necessary to give said defendant the proper information, they appear to have been supplied by the bill of particulars furnished by plaintiff, according to Lavenstein's request.

It appears that, after the plaintiff had rested his case in chief, the defendant Stutz demurred to the evidence on the ground that no evidence had been produced to show that the driver of the Ford truck was said Stutz's agent or was acting for him at the time of the accident; whereupon counsel for the plaintiff asked leave to recall the plaintiff as a witness for the purpose of supplying proof of such agency, but the court refused to permit this to be done on the ground that the plaintiff had closed his case, and forthwith sustained the demurrer. The defendant Lavenstein then moved the court to permit the jury to retire and assess plaintiff's damages against Stutz, subject to the ruling of the court on said demurrer, before proceeding further with the trial of the case. This motion was denied by the court, and the ruling is assigned as error. It is expressly provided by the statute (section 6117 of the Code):

That, when the evidence is demurred to, the court shall "allow the demurree to withdraw his joinder in such demurrer and introduce new evidence, or suffer a nonsuit, at any time before the jury retire from the bar."

It was, therefore, error on the part of the court in refusing to permit the plaintiff to introduce additional evidence against the defendant Stutz, under the circumstances; but, although the plaintiff in the court below might have complained of this action, we fail to see how Lavenstein could have been prejudiced by this ruling, or the court's refusal to permit the jury to assess damages against Stutz upon the demurrer to the evi-dence before the case was further proceeded with.

In Riverside Cotton Mills v. Lanier, 45 S. E. 875, 102 Va. 148, it was held:

"The general rule is that any number of tortfeasors may be joined in the same action, where all are alleged to have participated in the wrong. They may be sued jointly or severally, at the election of the plaintiff; and that is true, notwithstanding there may exist a difference in the degree of liability, or the quantum of evidence necessary to establish such liability."

"When the negligence of two or more persons concurs in producing a single indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design, or concert of action." Walton, Wit-ten & Graham v. Miller, 63 S. E. 458, 109 Va. 210, 132 Am. St. Rep. 908; Carlton v. Boudar, 88 S. E. 174, 118 Va. 521, 4 A. L. R. 1480.

In the light of these well-established rules, the plaintiff in the court below was clearly entitled to proceed against both or either of the said defendants; or, having originally proceeded against both, to have suffered a nonsuit or dismissed his action as to either one of them, at his election. Lavenstein could not be held liable in any course of procedure the plaintiff may have seen fit to adopt, unless it is shown that his negligence caused or concurred in the wrong complained of. He therefore suffered no prejudice in the premises, and the said assignment of error is without merit.

Another of the assignments is that the the court erred in refusing to set aside the verdict of the jury on the ground that the same is contrary to the law and the evidence.

The practically undisputed facts as shown by the evidence are that the road referred to at the point of the accident consisted of concrete construction 14 feet in width, with a dirt extension, 8 or more feet wide, on each side; that the Ford truck was being driven at excessive speed, and, before meeting Lavenstein's car, turned to the right off the concrete so that the right wheels of the truck were 2 or 3 feet over on the dirt portion of the road; that in passing Lavenstein the driver of the truck attempted to bring his machine back on the concrete before he had allowed Lavenstein time to get by—"cut back on the road too quick"—in consequence whereof the left front wheel of the truck struck Lavenstein's rear fender, which "jammed" said wheel and caused the truck to skid violently across the road and run into Maile's car, and practically demolish it. The only material conflict in the evidence is in regard to Lavenstein's conduct and the position of his car at the time the truck collided with him.

On this point it was testified by Maile that just before Lavenstein met the truck he swerved his car to the left of the road to such an extent that the truck was forced partly off the concrete; and testified by Lav enstein and his witnesses that he did not turn to the left, but, at the time it came in contact with the truck, his car was well over on the right side of the concrete roadway. The question of fact presented by this conflict in the evidence was exclusively for the determination of the jury, and, it having been resolved by the verdict in plaintiff's favor, we are bound to accept it as conclusively established that at the time Lavenstein's car collided with the truck he was driving on the left side of said concrete roadway.

In view of the above facts and circumstances, as conceded or established by the verdict of the jury, it appears manifest that but for the negligence of the driver of the Ford truck in proceeding at an excessive rate of speed, and in turning his machine back on the concrete before Lavenstein bad sufficient time to pass, the accident would not have happened; but it is as equally apparent that, if Lavenstein had kept to the right side of the road, the collision between his car and the truck, which collision was the direct cause of the accident, would not have occurred.

The question is, therefore, whether Lavenstein's...