Murphy v. Taxicabs of Louisville, Inc.

• Citation: 330 S.W.2d 395
• Decision Date: 18 December 1959
• Docket Number: B-L
• Parties: C. W. MURPHY, Appellant, v. TAXICABS OF LOUISVILLE, INC., d/b/aine Cab Company, et al., Appellees.
• Court: United States State Supreme Court (Kentucky)

Page 395

330 S.W.2d 395

C. W. MURPHY, Appellant, v. TAXICABS OF LOUISVILLE, INC., d/b/a B-Line Cab Company, et al., Appellees.

Court of Appeals of Kentucky.

Dec. 18, 1959.

Paul L. Humphrey, Louisville, for appellant.

Edwin O. Davis, Edward J. Hogan, John Bennett, Louisville, for appellees.

STEWART, Judge.

This is an appeal from a summary judgment which dismissed the complaint of appellant, C. W. Murphy, against all the appellees, six in number.

The following facts appear in depositions taken in this litigation for discovery purposes: On February 13, 1957, at about 6:00 p. m., appellant was driving south on the Dixie Highway, in Jefferson County, in a line of traffic. He brought his car to a standstill near the intersection of Radcliffe Avenue, and, almost immediately, his car was hit from the rear and then, shortly thereafter, struck from the rear again. Just prior to his stopping, appellant's car was being followed at a distance of 10 to 15 feet by a B-Line Company taxicab owned by Taxicabs of Louisville, Inc., and driven by Ruel E. Devine. When appellant halted his car, Devine attempted to brake his taxicab and, in so doing, collided with appellant's standing automobile in the rear. Peggy Evans, who at the time was operating the car of her sister, Yvonne Evans, was proceeding closely behind the taxicab. She barely managed to stop her car without making contact with the taxicab. She gave no signal of her intention to make this change of movement. John E. Bierema was traveling 20 feet behind the Evans car at a speed of 20 miles per hour in a car owned by Robert DeJong. He testified that the Evans car stopped so suddenly that he ran into it, forcing it to strike the taxicab and the taxicab to collide with appellant's car.

Appellant suffered an injury to his neck and left shoulder. He testified he felt two impacts which were so close together that he could not tell which one caused his injury. Appellant filed suit on July 3, 1957, against the three car operators and the three car owners, the six appellees herein, claiming his injury was caused by the joint and concurrent negligence of all these persons. He asked for $5,000 compensatory damages for his personal injuries, $650 for medical expenses, and $100 for repairs to his car.

Taxicabs of Louisville, Inc., and Ruel E. Devine, the taxicab operator, filed their answer and a cross-claim against their co-defendants, who, in turn, filed their answers to the complaint. On October 14, 1957, all the defendants, appellees herein, filed a joint motion for summary judgment, which was sustained on December 20, 1957.

Appellees asserted in the lower court a somewhat dubious theory as to why appellant should be barred from maintaining this action. We characterize it as 'dubious' because it is based upon a presumption that appellant received separate and distinct injuries as a result of the two impacts and that such a circumstance does not create joint liability on the part of appellees, or any of them. It is argued in this connection that appellees did not act in concert and, as appellant was unable to show what particular injury occurred to him from each of the collisions, he should not be permitted to maintain this action against appellees jointly. The trial judge, in a written opinion which accompanies this record, upheld their contention and granted summary judgment.

Appellant not only alleged in his complaint but testified that the accident produced a single injury to his person, and nowhere in the evidence can we find that his statement in this respect was ever contradicted. It thus appears that the presumption advanced by appellees and adopted by the lower court to the effect that appellant was injured more than once from different causes was rebutted by positive proof. Therefore, once the multiple injury theory gives way to the single injury fact, appellees' contention as to the principles of law applicable to more than one injury from more than one factor is not controlling. The rule governing one, indivisible injury is found in 38 Am.Jur., Negligence, sec. 257, p. 946, and reads thus:

'According to the great weight of authority, where concurrent or successive negligent acts, or omissions of two or more persons, although acting independently of each other, are, in combination, the direct and proximate cause of a single injury to a third person, and it is impossible to determine in what proportion each contributed to the injury, either is responsible for the whole injury, even though his act alone might not have caused the entire injury, or the same damage might have resulted from the act of the other tort-feasor, and the injured person may at his option or election institute suit for the resulting damages against any one or more of such tort-feasors separately, or against any number or all of them jointly.' (Emphasis added.)

Prosser in his handbook on the Law of Torts (2d ed.) on page 226, states the proposition thus: '* * * Where two or more causes combine to produce such a single result, incapable of any logical division, each may be a substantial factor in bringing about a loss, and if so, each may be charged with all of it. Here again the typical case is that of two vehicles which collide and injure a third person. The duties which are owed to the plaintiff by the defendants are separate, and may not be identical in character or scope, but entire liability rests upon the obvious fact that each has contributed to the single result, and that no rational division can be made.'

The law of Kentucky is in accord with the foregoing statement of law. In McCulloch's Adm'r v. Abell's Adm'r, 272 Ky. 756, 115 S.W.2d 386, 389, a car struck a wagon from the rear as they were both traveling down a highway. The car came to rest in a...