Porterie v. Peters

• Decision Date: 05 March 1975
• Docket Number: No. 11681,11681
• Citation: 111 Ariz. 452,532 P.2d 514
• Parties: Urban PORTERIE, Appellant, v. Cabot B. PETERS and Jane Doe Peters, his wife, William E. Dunn and Jane Doe Dunn, his wife, and Harold J. Chittum and Jane Doe Chittum, his wife, Appellees. . In Division
• Court: Arizona Supreme Court

Page 514

532 P.2d 514

111 Ariz. 452

Urban PORTERIE, Appellant, v. Cabot B. PETERS and Jane Doe Peters, his wife, William E. Dunn and Jane Doe Dunn, his wife, and Harold J. Chittum and Jane Doe Chittum, his wife, Appellees.

No. 11681.

Supreme Court of Arizona. In Division.

March 5, 1975.

Rosen & McGroder by David Neal Rosen, Phoenix, for appellant.

Maupin, Wilson & Maud by Donald R. Wilson, Phoenix, for appellee Peters.

Johnson, Tucker, Jessen & Dake by Kenneth L. Tucker and Michael M. Johnson, Phoenix, for appellees Dunn and Chittum.

HOLOHAN, Justice.

This action is one for damages for personal injuries the plaintiff alleged he sustained from a motor vehicle accident in which several vehicles were involved. From a jury verdict and judgment in favor of all the defendants and from an order denying a motion for a new trial, the plaintiff appealed.

The appeal was filed in the Court of Appeals, but this Court assumed jurisdiction over the matter pursuant to Rule 47(e)(5), Rules of the Supreme Court, 17A, A.R.S.

The accident occurred at about 7:00 o'clock in the evening on the Black Canyon Freeway near Cordes Junction, Arizona. About thirty minutes prior to the accident a cattle truck had gone off the highway and overturned. A highway patrolman was investigating the accident. His patrol car was parked off the shoulder of the road. There was testimony that the top mount lights on the patrol car were operating.

The order in which the crash or crashes occurred and relative sequence in which the vehicles involved in the accident were traveling, is in complete dispute by the parties.

Plaintiff's Theory

Appellant, plaintiff below, was a passenger in a 1962 Dodge pickup truck driven by defendant Peters. As they came over a hill he saw the taillights of a car in front of them (later identified as a Thunderbird). Plaintiff's host driver, Peters, veered to the left to go around the Thunderbird. As he did so, the Thunderbird pulled into the left lane. Peters, attempting to go around the Thunderbird, pulled back onto the right shoulder, but so did the Thunderbird. At that moment Peters' pickup was 'tapped' in the rear by another car and knocked sideways so that the pickup hit the Thunderbird. Plaintiff sustained no injury until Peters' vehicle was 'tapped' in the rear. It was plaintiff's theory that either defendant Dunn or defendant Chittum hit Peters' pickup in the rear forcing the pickup into the Thunderbird.

Plaintiff joined as defendants Peters, his host driver, Dunn and Chittum. The driver of the Thunderbird was not made a party defendant.

Peters' Theory

Peters' account of the accident was similar to plaintiff's. It was his theory that defendant Dunn must have hit his car because it had damage on the left rear fender and to the front end.

Dunn's and Chittum's Theory

Dunn testified that he did not hit a car in front of him. It was his theory that he was hit in the rear by Chittum's pickup and was forced off the highway, hitting a highway sign which caused the front end damage to his pickup.

Chittum testified that he hit Dunn's pickup but did not strike the Peters vehicle.

It is both Dunn's and Chittum's theory that Peters' vehicle was Not struck in the rear but rather the injury to plaintiff, if any, was caused by a collision of Peters' pickup with the Thunderbird. They contend they could in no way be considered negligent because they did not collide with Peters' pickup.

The defendants contend that plaintiff was not injured as a result of this accident, and there is conflicting evidence as to whether plaintiff was injured by the accident.

Plaintiff presented five questions on appeal:

(1) Did the court err in refusing to give plaintiff's requested instruction based on Section 433 of the Restatement (Second) of Torts, to the effect that the burden of proof shifts to the defendant where plaintiff is injured by one or two or more negligent defendants, but cannot prove which one?

(2) Did the court err in giving defendants' requested instruction as to proximate cause?

(3) Was it error to refuse to instruct the jury that it was no defense to assert that a party not joined as a defendant was also a proximate cause of the accident?

(4) Did the court err in failing to give a 'to look is to see' instruction?

(5) Did the court err in failing to grant plaintiff's motion for a mistrial because of remarks of defendants' counsel?

Plaintiff requested an instruction based on the Restatement (Second) of Torts, Section 433 B. The instruction was written by hand. At the time the instructions were being settled, plaintiff read the following instruction into the record from the handwritten instruction:

'The burden of proof in a negligence case is upon the plaintiff except where the negligent conduct of two or more persons has combined to bring about harm to the plaintiff and one or more of the persons seek to limit his liability on the grounds that the harm is capable of apportionment among them.

'The burden of proof as to the apportionment is upon each such person and likewise the burden of proof is upon each such person claiming to avoid liability where the conduct of two or more persons is negligent and it has been proved that harm has been caused to the plaintiff by one of them but there is uncertainty as to which one caused it.' (Transcript Vol. IV, pp. 451, 452.)

Plaintiff believed the handwritten instruction had been filed but it was not. The handwritten instruction was attached to plaintiff's brief and read as follows:

'The burden of proof in a negligence case is upon the plaintiff except where the negligent conduct of two or more persons has combined to bring about harm to the plaintiff, and one or more of the persons seek to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such person.

'Or where the conduct of two or more persons is negligent and it has been proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one caused it, the burden is upon each such person to prove that he has not caused the harm.' (Plaintiff's brief, Appendix, pp. 52, 53.)

Section 433 B of the Restatement is as follows:

'(1) Except as stated in Subsections (2) and (3), the burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff.

'(2) Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.

'(3) Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.'

In a succession of decisions we have held that the burden of proving negligence rests upon the plaintiff. It is not incumbent upon the defendant to prove an absence thereof. Pickwick Stages Corp. v. Messinger, 44 Ariz. 174, 36 P.2d 168 (1934); Salt River Valley Water Users' Assn. v. Blake, 53 Ariz. 498, 90 P.2d 1004 (1939); Berne v. Greyhound Parks of Arizona, Inc., 104 Ariz. 38, 448 P.2d 388 (1968).

It is plaintiff's position that where an innocent plaintiff is injured by one or more negligent defendants, but he cannot prove which defendant or defendants actually caused the injury, the burden shifts to the defendant to prove that he did not cause the injury. In support of his contention, plaintiff cites Section 433 of the Restatement (Second) of Torts. Plaintiff's offered instruction encompasses both subsections 2 and 3 of the Restatement. Subsection 2 relates to apportionment of harm to a plaintiff. In this case there was but a single injury to the plaintiff. Any instruction concerning apportionment would have been improper. The correctness of instructions given in a case must be determined in the light of the issue raised by the pleadings and by the evidence. Davis v. Burington, 101 Ariz. 506, 421 P.2d 525 (1966). If a requested instruction is partly correct and partly incorrect, it is not the duty of the trial court to reword the requested instruction so as to eliminate the incorrect statement. Powell v. Langford, 58 Ariz. 281, 119 P.2d 230 (1941); O'Rielly Motor Co. v. Rich, 3 Ariz.App. 21, 411 P.2d 194 (1966). A refusal to give an instruction which is not applicable to the facts in the case and does not correctly state the law, is not grounds for reversal. Instructions must be measured by the facts and circumstances of the case in which they are given. For these reasons we hold it was not error to refuse to give the requested instruction.

Additionally the facts of this case do not bring it within Rule 433 B, subsection 3 of the Restatement. The comment to the rule demonstrates that it was designed to apply only where it has been proven that each of two or more defendants had acted negligently. See comment (g) to Section 433 B, Restatement (Second) of Torts.

The evidence is conflicting as to whether any of the defendants were negligent as well as to whether any of their actions caused injury to the plaintiff. The plaintiff is asking us to hold that the negligence of all of the defendants is clear, and this we cannot do.

Mere abstract legal rules should not be given unless they are applicable to the issues in the case at issue.

Plaintiff also cites the California case of Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948); however, this case is not applicable. In Summers there was no question as to the negligent acts of the defendants.

The question presented by the Restatement rule may be distinguished from the factual elements involved in this case. Under the Restatement rule, there are wrongful or negligent acts...