Maddux v. Donaldson, s. 44

• Decision Date: 01 October 1960
• Docket Number: Nos. 44,s. 44
• Citation: 108 N.W.2d 33,362 Mich. 425
• Parties: , 100 A.L.R.2d 1 Cheryl Lee MADDUX, by her next friend, Fred Maddux, Plaintiff-Appellant, v. William DONALDSON and Paul Bryie, jointly and severally, Defendants-Appellees. Velda MADDUX, Plaintiff-Appellant, v. William DONALDSON and Paul Bryie, jointly and severally, Defendants-Appellees. Fred MADDUX, Plaintiff-Appellant, v. William DONALDSON and Paul Bryie, jointly and severally, Defendants-Appellees. ,
• Court: Michigan Supreme Court

Page 33

108 N.W.2d 33

362 Mich. 425, 100 A.L.R.2d 1

Cheryl Lee MADDUX, by her next friend, Fred Maddux, Plaintiff-Appellant, v. William DONALDSON and Paul Bryie, jointly and severally,

Defendants-Appellees.

Velda MADDUX, Plaintiff-Appellant, v. William DONALDSON and Paul Bryie, jointly and severally,

Defendants-Appellees.

Fred MADDUX, Plaintiff-Appellant, v. William DONALDSON and Paul Bryie, jointly and severally,

Defendants-Appellees.

Nos. 44, Oct. Term, 1960, 45, Oct. Term, 1960, 46, Oct. Term, 1960.

Supreme Court of Michigan.

Feb. 28, 1961.

Riseman, Lemke & Piotrowski, Detroit, for plaintiffs and appellants.

Howlett, Hartman & Beier, Pontiac, for defendant and appellee Paul Bryie.

Before the Entire Bench.

SMITH, Justice.

Once again ¹ we consider the problem of damages when the car in which plaintiffs are riding is struck first by one automobile and then, almost simultaneously, by another.

The plaintiffs are Fred Maddux, his wife, and infant daughter. They were driving in an easterly direction on US-112, near Clinton, Michigan, in a Ford pickup. It had been raining and the pavement was wet. Paul Bryie was following them, both cars traveling at speeds between 35 and 40 miles per hour. As the cars approached a bend in the road, Mr. Maddux observed a car some 1500 feet away, skidding towards him, sideways, 'in a swinging motion, in an arc' at a high rate of speed. He tried to get beyond a certain point on the highway before the skidding car reached it but was unsuccessful. The 2 cars collided, with extensive damage to both.

While plaintiffs' car was stopped, with its occupants injured, it was struck again almost immediately, this time by the car following. Again the impact was substantial; Mr. Bryie considered his car to be a total loss.

The cases against the skidding driver, William Donaldson, was discontinued by plaintiffs. The court subsequently dismissed the cases of Mrs. Maddux and her daughter against Mr. Bryie, the driver of the following car, on the ground that 'there is no evidence of damage before this jury from which any inference can be drawn in relation to the responsibility of Paul Bryie.' Mr. Maddux's case was dismissed on the ground that he was guilty of contributory negligence as a matter of law. We will first examine this aspect of the case.

At the time Mr. Maddux observed the car skidding sideways towards him it was about 1500 feet distant, traveling in the arc of a curve, sideways, at a speed between 80 and 100 miles per hour. Plaintiff tried to avoid a collision by doing what he described as getting 'beyond the tangent point in the radius' of the arc the oncoming car was traveling to. To do so, he remained on the highway. It is true that he might have taken to the shoulder, although there was a 12-foot ditch alongside, and thus, as it turned out, avoided collision. But at the time he made his decision he had no assurance that the skidding car would not itself leave the road. As a matter of hindsight, it would seem better not to have remained on the highway. But Mr. Maddux's actions are not to be judged in the light of hindsight. He was suddenly imperilled by a serious emergency not if his own making. In this situation, as we have so often held, the law makes allowance for lack of calm judgment, for failure 'to adopt what subsequently and upon reflection may appear to have been a better method.' ² Whether or not Mr. Maddux was contributorily negligent as to the measures he took in the emergency was an issue for the jury, under proper instruction.

We now reach the problem of the plaintiff whose injuries have resulted from successive impacts, to all intents and purposes concurrent. This is one of the most baffling of our current legal problems, ³ critical because of the extensive use of expressways upon which large numbers of cars travel at high speeds in close proximity to one another. As to the issue presented, the courts are in the most serious conflict, our own Court dividing 3 ways among the 6 justices sitting the last time the issue was before us. ⁴ The difficulty arises from the fact that we do not have a 'joint' tort in the ordinary sense of the word, and thus it is argued that there cannot be joint and several liability. ⁵ There has been no breach of any 'joint' duty owed the plaintiffs by the 2 automobile drivers who successively collided with their car. Obviously the 2 did not act in concert. Nor is the joint enterprise doctrine applicable, nor masterservant, nor principal-agent. Actually what we have is injury to plaintiffs resulting from the independent and tortious acts of 2 tortfeasors.

There is authority, in this situation, that plaintiff must separate the injuries, ascribing some to one tortfeasor and the balance to the other, much as a housewife separates the colored and the white goods before laundering. Such authority concludes that if plaintiff cannot make such differentiation he cannot recover from either. This type of decision is well illustrated by the case of Adams v. Hall, 1829, 2 Vt. 9. In this case an owner of sheep suffered loss to his flock through the depredations of 2 dogs. The owners he sued jointly. It was shown at the trial, however, that they were not joint owners. In addition, there was no testimony as to which dog killed which sheep. In approving a non-suit it was held that neither owner was liable for the actions of the other's dog, merely because the 'did the mischief in company.'

However defensible such a result may have been in this and cases similar in principle in an agrarian economy shortly after the American Revolution (and even this is open to question) we do not regard it as precedent governing the liability of automobile owners in what are known as 'chain collisions' on today's highways. It should be unnecessary to spell out the differences between the social problems presented or the judicial policies involved in their solution. When we impose upon an injured plaintiff the necessity of proving which impact did which harm in a chain collision situation, what we are actually expressing is a judicial policy that it is better that a plaintiff, injured through no fault of his own, take nothing, than that a torfeasor pay more than his theortical share of the damages accruing out of a confused situation which his wrong has helped to create. ⁶ The mere statement of the policy exposes its aberrations. It is at war with at least the last hundred years of judicial progress. It is, in addition, as Dean Wigmore has pointed out, ⁷ utterly inconsistent with the ratio decidendi of precedents going back at least to the year 1613 ⁸ when the rule of joint and several liability dispensed with the necessity of plaintiff's proof of just which ruffian inflicted which injury when he was set upon by three. The reason behind the rule was impossibility, the impossibility of plaintiff's proving the origin of each of his injuries. Where the same impossibility exists today, our sensitivity to plaintiff's injury should be no less than that of the King's Beach to its plaintiff, whose 'wounding (which in truth was in a cruel and barbarous manner) at Fakenham in Norfolk' was held to impose joint and several liability upon the defendants. It is clear that there is a manifest unfairness in 'putting on the injured party the impossible burden of proving the specific shares of harm done by each. * * * Such results are simply the law's callous dullness to innocent sufferers. One would think that the obvious meanness of letting wrongdoers go scot free in such cases would cause the courts to think twice and to suspect some fallacy in their rule of law.' ⁹

The fallacy involved turns upon the word 'divisible.' In the case before us, at the conclusion of the 2 impacts, Mrs. Maddux suffered from a fracture of the right femur, of the left patella, and of the right radius ulna, in addition to multiple lacerations of the face. She had passed blood in her urine, suffered an eye injury, and, withal, came psychiatric difficulties, possibly 'of an organic toxic basis.' Are such injuries divisible? Theoretically, they may be, possibly they are. We may hypothesize situations in which some participant in the tragedy remains uninjured and observant, or in which the force and direction of the impacts are so markedly different that a reasonable allocation of harm to them may be made. But these cases would present no difficulty. The challenging situation is the one before us, involving 2 substantial impacts with multiple injuries, in respect of which a jury would be well justified in concluding that the plaintiff's various injuries may not be identified as to origin. As a matter of fact it may be utterly unrealistic to insist that the plaintiff is suffering merely from a series of wounds, separable either legally or medically. Actually the plaintiff may suffer from a composite injury, the ingredients of which are impossible to identify in origin and impracticable to isolate in treatment. Thus in the case before us, was the blood in the urine the result of the first impact or the second? Will the psychiatric treatment be related to the fracture of the femur, or to the multiple lacerations of the face, with its 'jagged facial scars,' or to the overall condition?

There is no need to write at greater length upon the various considerations involved in this type of problem in view of the examination given it by Mr. Justice Black in his concurring opinion in the recent case of Meier v. Holt, supra. It is our conclusion that if there is competent testimony, adduced either by plaintiff or defendant, that the injuries are factually and medically separable, and that the liability for all such injuries and damages, or parts thereof, may be allocated with reasonable certainty to the impacts in turn, the jury will be instructed accordingly and mere difficulty in so doing will not relieve the triers of the facts of this responsibility. ¹⁰ This merely follows the general rule that 'where...