McDowell v. Davis

• Decision Date: 27 December 1968
• Docket Number: No. 9426--PR,9426--PR
• Citation: McDowell v. Davis, 104 Ariz. 69, 448 P.2d 869 (Ariz. 1968)
• Parties: Howard Eugene McDOWELL, Jr., Howard Eugene McDowell and Blanche C. McDowell, Appellants, v. Thomas M. DAVIS, a minor, C. E. Davis, Read Mullan Motor Company, an Arizona corporation, Michael W. Altamirano and the City of Phoenix, a municipal corporation, Appellees.
• Court: Arizona Supreme Court

Page 869

448 P.2d 869

104 Ariz. 69

Howard Eugene McDOWELL, Jr., Howard Eugene McDowell and Blanche C. McDowell, Appellants, v.Thomas M. DAVIS, a minor, C. E. Davis, Read Mullan Motor Company, an Arizona corporation, Michael W. Altamirano and the City of Phoenix, a municipal corporation, Appellees.

No. 9426--PR.

Supreme Court of Arizona, In Banc.

Dec. 27, 1968.

Rehearing Denied Jan. 21, 1969.

Moore, Romley, Kaplan, Robbins & Green, by Elias M. Romley and Craig R. Kepner, Phoenix, for appellants.

Browder & Gillenwater, by Robert W. Browder, Phoenix, for appellees, Davis.

Snell & Wilmer, by John J. Bouma, Phoenix, for appellee, Read Mullan Motor Co.

Kramer, Roche, Burch, Streich & Cracchiolo, by Dan Cracchiolo, Phoenix, for appellees, Altamirano and the City of Phoenix.

STRUCKMEYER, Justice.

This action was brought by Howard Eugene McDowell, Jr., a minor, and his parents, appellants.Howard Eugene McDowell was a passenger in an automobile driven by appellee, Thomas M. Davis, when their vehicle collided with a sanitation truck of appellee, City of Phoenix.The trial court directed a verdict in favor of Read Mullan Motor Company, the owner of the Davis car, and the jury returned a verdict in favor of appellants and against the appellees, Thomas M. Davis, a minor and C. E. Davis, his father, in the total sum of $163,117.28.A judgment was returned in favor of appellees, the City of Phoenix and its driver, Michael W. Altamirano.

Appellants ask for a new trial against all partiesdefendant because of certain errors occurring during the trial.The Court of Appeals, Division One, affirmed the judgments.On appellants' motion for reviewwe accepted jurisdiction to examine into the correctness of that court's decision approving the trial court's instruction on proximate cause.Opinion of the Court of Appeals, Division One, 8 Ariz.App. 33, 442 P.2d 856, disapproved in part and this cause reversed as to all parties except the Read Mullan Motor Company.

This court has repeatedly defined proximate cause as:

'The proximate cause of an injury is that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces an injury, and without which the injury would not have occurred.'(Citations)

No principle of law has been so unvaryingly stated.Brand v. J. H. Rose Trucking Co., 102 Ariz. 201, 427 P.2d 519;Stearnmam v. Miranda, 97 Ariz. 55, 396 P.2d 622;Alires v. Southern Pacific Co., 93 Ariz. 97, 378 P.2d 913;Lyric Amusement Co. v. Jeffries, 58 Ariz. 381, 120 P.2d 417;Salt River Valley Water Users' Association v. Cornum, 49 Ariz. 1, 63 P.2d 639;Chapman v. Salazar, 40 Ariz. 215, 11 P.2d 613;Inspiration Consolidated Copper Co. v. Conwell, 21 Ariz. 480, 190 P. 88.

The trial court defined proximate cause to the jury in the foregoing usual and customary manner and then, over the appellant's objection, added:

"Ladies and gentlemen, another test of proximate cause recognized by our law may be helpful to you.Was the negligent act of the party under consideration a material element or a substantial factor in producing the injury?An act or an omission cannot be a proximate cause if it contributes only slightly or possibly to the result, for a proximate cause is one which is a material element or a substantial factor in causing the injury."(Emphasis supplied.)

The quoted instruction given by the trial court was taken verbatim from the Arizona Uniform Jury Instructions, No. 5--A prepared by the State Bar Committee on Uniform Jury Instructions.

The 'substantial factor test,' as a test of causation, was widely introduced by the Restatement of Law Institute in its Restatement of Torts in 1934, now to be found in the Restatement of Torts Second, § 431, p. 428:

' § 431.What Constitutes Legal Cause

The actor's negligent conduct is a legal cause of harm to another if

(a) his conduct is a substantial factor in bringing about the harm, * * *.'

It is argued for the appellees that this court approved the 'substantial factor test' in 1937 in Herzberg v. White, 49 Ariz. 313, 66 P.2d 253.There, we tested the sufficiency of the evidence to support a judgment by recourse to the language of the Restatement.We used it to determine whether there was causation in fact.We neither implied not inferred that the 'substantial factor test' was properly or appropriately submitted to a jury as a substitute test of proximate cause.Since then, leading authorities on the law of torts have questioned the use of the 'substantial factor test.'Prosser, Law of Torts 3rd Ed., Ch. 9, § 49, p. 286, andHarper and James, Law of Torts(1956), Vol. 2, § 20.6, p. 1159.And seeGreen, The Torts Restatement(1935), 29 Ill.L.Rev. 582, 602.

The use of the word 'substantial' in a jury instruction is open to serious criticism in that it is a source of additional confusion injected into an already difficult area of law.Webster's Third International Dictionary Unabridged, notes a number of varying meanings for the word 'substantial'--among these it is defined as 'not * * * imaginary, not illusive.'Were we certain that it would be understood in this sense, or in the sense of 'insignificant', a litigant would have little cause to complain.However, Webster also defines 'substantial' as 'abundant, plentiful' and 'considerable in amount', p. 2280.Commonly, we speak in terms of a substantial amount as in a substantial meal or a substantial income.If this meaning is attributed to the word, the instruction is palpably erroneous as inducing the concept of largeness as opposed to smallness.It is not how little or how large a cause is that makes it a legal cause, for a proximate cause is Any cause which in a natural and continuous sequence produces the injury and without which the result would not have occurred.

The italicized portion of InstructionNo. 5--A of Arizona Uniform Jury Instructions is not merely susceptible of confusing the jury but when taken in any posture must be considered as prejudicially erroneous.This portion of the...