Marinkovich v. Tierney

• Decision Date: 17 December 1932
• Docket Number: 6953.
• Parties: MARINKOVICH v. TIERNEY et al.
• Court: Montana Supreme Court

17 P.2d 93

93 Mont. 72

MARINKOVICH v. TIERNEY et al.

No. 6953.

Supreme Court of Montana

December 17, 1932

Appeal from District Court, Silver Bow County; George B. Winston Judge.

Action by Pera Marinkovich, administratrix of the estate of Emil M Marinkovich, deceased, against Frances Tierney and others copartners doing business under the name and style of Tierney Brothers, and another. From a judgment in favor of plaintiff defendants appeal.

Reversed and remanded, with directions.

Burden of proving contributory negligence rests generally upon defendant, but when plaintiff's case presents evidence which, unexplained, prima facie shows contributory negligence, there must be further evidence exculpating him.

Kremer, Sanders & Kremer, of Butte, for appellant Jack Weiss.

John K. Claxton, of Butte, for appellant Tierney Bros.

T. J. Collins, of Anaconda, and S. P. Wilson, of Deer Lodge, for respondent.

MATTHEWS J.

Pera Marinkovich, as administratrix of the estate of Emil M. Marinkovich, her deceased minor son, brought action against Frances Tierney, Walter Tierney, and Ella Tierney, copartners doing business as "Tierney Brothers," and Jack Weiss, for damages sustained by the estate by reason of the injuries suffered by the young man when a Ford coupé, owned and driven by Weiss and in which Emil M. Marinkovich was riding as an invited guest, collided with a stalled truck belonging to Tierney Brothers.

The accident occurred within the city limits of Anaconda, at about 3:30 a. m. on the 9th of November, 1930, when Weiss, Marinkovich, and another young man were returning from a dance at Race Track. The Tierney truck, employed in conveying morning papers from Butte to Anaconda for distribution, stalled on the street at the point of the accident, and the driver, being unable to move it, left to secure help; before he returned Weiss drove his car into the rear of the truck.

The alleged negligence of Tierney Brothers is in leaving the truck "parked" on the street without lights, in violation of the city ordinance, which is set out in and made a part of the complaint; that of Weiss, in driving at an excessive and reckless rate of speed, and in excess of twenty-five miles per hour, in violation of the city ordinance, and in failing to keep a proper lookout ahead.

The defendants, by separate answers, denied the allegations of negligence and alleged contributory negligence, in that the deceased had full knowledge of the manner in which Weiss was driving and failed to take exception thereto, or warn or admonish Weiss to cease to drive at the alleged excessive rate of speed, or to take any steps to contribute to or preserve his safety.

Issue was joined by replies to the answers; a jury trial was had. At the close of plaintiff's case each defendant moved for judgment of nonsuit, which motions were denied; whereupon each defendant introduced evidence and, all parties having rested, each defendant asked for an instructed verdict against the plaintiff; this also was denied. The trial resulted in a verdict for the plaintiff for the full amount claimed by the complaint, as it was submitted to the jury, to wit, the sum of $12,500. Each defendant moved for a new trial, which motions were denied, and judgment followed. Defendants have appealed from the judgment. They make forty-eight assignments of error; those relied upon are grouped, in argument, in such manner as to present only the questions hereinafter discussed.

1. The complaint alleges that "each and all of the negligent acts *** of *** Tierney Brothers and *** of Weiss and each and all of the violations of duty of each *** were concurrent acts of negligence and *** all contributed to and proximately caused the injuries," etc.

Early in the trial defendants objected to certain testimony, which was confined strictly to the case against Weiss, with the assurance that it was not to be considered in any manner as affecting the case against Tierney Brothers. The ground of objection was that, as the case was based upon "concurrent negligence," the testimony must be such as was admissible against both defendants, or it was inadmissible for any purpose. These objections were overruled.

Thereafter the cause was tried on the theory of separable responsibility and the defendants became antagonists, each attempting to show the liability of the other; counsel for one interposing objections to questions asked witnesses for the other and cross-examining such witnesses.

Defendants relied upon the ruling in Forsell v. Pittsburgh & M. Copper Co., 38 Mont. 403, 100 P. 218, which is distinguishable from this case in that the concurrent negligence alleged was that of the defendant company and its vice principal, the operator of a defective hoist. In the Forsell Case, the "concurrent negligence" alleged consisted of acts or omissions on the part of both defendants, acting in conjunction, and, under the allegations of the complaint, the injury could not have been inflicted unless both defendants had been negligent in the manner charged; failure of proof as to the negligence of one, therefore, amounted to a total failure of proof, though the negligence of the other was established.

In the case at bar the defendants were strangers to each other and there was no connection between the two charged acts of negligence; while they jointly operated to cause the accident and injury, they were not "concurrent" in the sense the term is used in the Forsell Case, but were "concurrent" in the sense that the term is used in the case of Carr v. St. Louis Auto Supply Co., 293 Mo. 562, 239 S.W. 827, 829, wherein it is declared: "Concurrent, as distinguished from joint, negligence arises where the injury is proximately caused by the concurrent wrongful acts or omissions of two or more persons acting independently. *** Unless the damage caused by each is clearly separable, permitting the distinct assignment of responsibility to each, each is liable for the entire damage." This decision is in accord with the rule that "if the concurrent negligence of two or more persons combined together results in an injury to a third person, they are jointly and severally liable and the injured person may recover from either or all." 45 C.J. 895, and cases cited; Black v. Martin, 88 Mont. 256, 292 P. 577.

The case was tried upon the correct the ory of joint and several liability, and the complaint but charges that the negligence of the several defendants operated concurrently to cause the injury.

However, over the objection of each of the defendants, who had theretofore acquiesced in the theory upon which the case was tried, the court instructed the jury to the effect that the plaintiff could only recover by proof of the negligence charged against each of the defendants and that this negligence "co-operated concurrently or in successive order and proximately caused" the injuries to the deceased--clearly referring to the rule in the Forsell Case. This instruction is manifestly erroneous, but counsel for the plaintiff assert that it was favorable to the defendants in that it placed a greater burden upon the plaintiff than the law imposed.

We do not so view the matter. The jurors learned from the evidence that, on a straight, clear pavement, in the quiet of night with little traffic in sight, a collision occurred by reason of which a young man lost his life; they were required to answer categorically as to whether or not each of the defendants was guilty of the acts or omissions charged; and that, on their answers to these questions, and all of them, in the affirmative, depended the plaintiff's right to recover. On the evidence adduced the jurors may have been reasonably certain that the driver of the truck did, as he stated, leave his lights, front and rear, burning, and, as an extra precaution, did hang a lighted red lantern on the rear of the truck. They may have further believed that Jack Weiss drove his car in a reckless manner and at a high rate of speed into the lighted truck by reason of failure to keep a proper lookout ahead. Conversely, the jurors may have been convinced that the truck was not lighted and that, although he proceeded at the legal rate of speed and kept a proper lookout, Weiss was unable to discover the truck in time to avoid a collision. In either situation, though deceased lost his life through culpable negligence of one or the other of the defendants, the jury could not, under the above instruction, have found for the plaintiff. Therefore, knowing that they were required to follow the instructions given, the jurors may have been overpersuaded to find against both defendants, in order to render a verdict in favor of plaintiff. The giving of the instruction constituted reversible error.

2. Over the strenuous objection of each of the defendants, the plaintiff was permitted to testify to the facts establishing the allegation of the complaint that "the said Pera M. Marinkovich is a widow of the age of 46 years, having five minor children other than the said Emil M. Marinkovich, the oldest of whom is of the age of 16 years and all of whom are entirely dependent upon plaintiff for their support; that plaintiff *** prior to the death of Emil *** was dependent upon him and upon his earnings for the maintenance and support of herself and family." She further testified that Emil had worked for five years, being all the time since the death of his father, and that he had always given her his wages with the exception of perhaps $5 per month, which he retained for his personal expenses.

In objecting to the questions asked for the purpose of bringing out this testimony, counsel for each defendant urged that such information given the jury would be highly prejudicial and, if admitted, the harm done...