Ruud v. Grimm

• Decision Date: 15 August 1961
• Docket Number: No. 50326,50326
• Citation: 110 N.W.2d 321,252 Iowa 1266
• Parties: Howard RUUD, Appellee, v. Theodore L. GRIMM, Defendant-Appellant, and Wayne L. Strawn, Defendant.
• Court: Iowa Supreme Court

Page 321

110 N.W.2d 321

252 Iowa 1266

Howard RUUD, Appellee, v. Theodore L. GRIMM, Defendant-Appellant and Wayne L. Strawn, Defendant.

No. 50326.

Supreme Court of Iowa.

Aug. 15, 1961.

Ross H. Sidney, Des Moines, for appellant.

Duffield & Pinegar, Des Moines, for appellee.

THORNTON, Justice.

This action involves two consecutive rear-end automobile collisions. The jury returned a verdict for plaintiff against the defendant Grimm involved in the first collision, but not against the defendant Strawn involved in the second collision. The appellant, Grimm, will be referred to as appellant, defendant Strawn as the second defendant.

Appellant urges four grounds for reversal: (1) that the evidence as to the cause of the injury is uncertain and is insufficient to show his negligence was the proximate cause of the injury; (2) that plaintiff's pleading and evidence do not support the submission of the case to the jury as against either defendant individually; (3) that it was error to submit to the jury the doctrine of res ipsa loquitur; and (4) it was error to permit the introduction of mortality tables. We hold reversible error does not appear in any of these respects.

From the evidence the jury was entitled to find the two collisions occurred about 7:45 a. m. May 5, 1958, on Highway No 69 south of the intersecting road leading west to the John Deere Plant at Ankeny; plaintiff was driving his 1954 Ford north toward Ankeny toward the Deere plant; plaintiff stopped his car in a line of traffic on Highway No. 69 and was waiting for traffic so he could make a left turn; plaintiff was stopped for about a minute to a minute and one-half when his car was struck in the rear by appellant; as a result of this first collision both plaintiff and appellant were rendered unconscious; neither recalled the second collision; in from one to three seconds the second defendant struck the rear of appellant's car forcing it forward; the front of appellant's car was jammed under the rear of plaintiff's car and it was necessary to pull them apart with a wrecker; the front seat in plaintiff's car was broken on the driver's side; the damage to the rear of plaintiff's car and the front of appellant's car was much more severe than that to the rear of appellant's car and the front of the second defendant's car; there were no skid marks made by appellant's car and from 70 to 90 feet of skid marks made by the second defendant's car; plaintiff was rendered unconscious, suffered a fractured rib and severe whiplash injury and will suffer therefrom for an indefinite future period.

The evidence as to the collisions and resulting injury is such the jury would have been entitled to find that injury was caused by the first collision, or by the second collision, or as the result of both.

I. In his argument the appellant's first two propositions are interwoven. He is actually contending plaintiff pleaded and proved a joint tort and if plaintiff is to recover he must prevail against both defendants or fail, and the evidence is such it cannot be determined which collision is the proximate cause and therefore the judgment against him cannot stand.

The petition is in two counts. In Count I, in which plaintiff relies on res ipsa loquitur, he alleges appellant ran into the rear of plaintiff's car and thereafter the second defendant drove his car into the rear of appellant's car causing such car to slam into the rear of plaintiff's car, and at the time and place set forth, the defendants, and each of them, were not in the exercise of due care in the use and management of the cars under their exclusive care and control and that by reason thereof defendants, and each of them, were negligent. In Count II plaintiff alleges, at the time and place set forth the defendants, and each of them, were negligent as to lookout, control and assured clear distance. In each count plaintiff pleaded his damages were proximately caused by the negligence of the defendants and each of them; and prayed for a judgment against the defendants and each of them. The petition was in no way attacked by either defendant. We believe the fair import of the petition, as it stood, is, the use of the word 'defendants' refers to a joint liability and asks a joint judgment, the use of the words, 'and each of them' refers to several liability and asks a several judgment. The appellant, the first defendant, does not cite authority to the effect the pleading restricts plaintiff to a joint recovery only and we have found none.

A doubtful pleading is resolved against the pleader when attacked before issue is joined or in the answer. Thereafter, it will be liberally construed to effectuate justice between the parties. The pleader will be accorded the advantage of every reasonable intendment, even to implications, regardless of technical objections or informalities. Reed v. Harvey, 252 Iowa ----, 110 N.W.2d 442. Rule 67, Rules of Civil Procedure, 58 I.C.A. As having some bearing see rules 22, 24(a) and 221, Rules of Civil Procedure; Freeby v. Town of Sibley, 183 Iowa 827, 167 N.W. 770; and Way v. Waterloo, Cedar Falls & Northern R. R., 239 Iowa 244, 29 N.W.2d 867, 174 A.L.R. 723.

II. The appellant's contentions, that the evidence was such it could not be determined which collision caused the injury, and plaintiff's proof was directed solely to obtaining a joint judgment are answered by the nature of the evidence. Plaintiff made no attempt to separate or attribute any portion of his injury and damage. From the damage to the cars and the skid marks there is ample evidence to sustain the jury's verdict against appellant. In reaching this verdict the jury had to find appellant's negligence was the proximate cause of plaintiff's injury. Actually what happened was plaintiff produced evidence persuading the jury as against the appellant and failed as against the second defendant. See Fitzgerald v. Des Moines City Ry. Co., 201 Iowa 1302, 1310, 207 N.W. 602.

Appellant argues that the fact situation here does not fit that in McDonald v. Robinson, 207 Iowa 1293, 224 N.W. 820, 62 A.L.R. 1419, and Law v. Hemmingsen, 249 Iowa 820, 826, 89 N.W.2d 386, 391, wherein it is stated, 'That each person whose negligence concurs or combines to cause injury to another is liable therefor is so well settled citation of authority is hardly necessary.' He argues that in these cases the negligence of each occurs causing one collision resulting in the injury and there is no question as to the cause of the injury. He contends the rule here applicable is expressed in Bowman v. Humphrey, 132 Iowa 234, 240, 109 N.W. 714, 716, 6 L.R.A.,N.S., 1111, a nuisance case wherein it was held the doctrine of contributory negligence had no application to the type of nuisance case under consideration and in the course of the opinion it is said:

'Joint liability of wrongdoers, each for all and all for each, exists only where the wrong itself is joint. If the separate wrongful acts of two or more persons, acting independently without concert, plan, or agreement, unite to cause injury to another, such persons are not joint wrongdoers within the meaning of the law, and each is liable to the injured party for only so much of said injury as is chargeable to his own and separate individual act.'

This rule has no application to an automobile negligence action. In McDonald and Law it is pointed out the negligence of two or more need only concur or combine and it is not necessary to liability that such persons act in concert or according to plan or agreement.

Appellant further contends that the occurrence must be such that the injury would not have happened except for the concurrence of negligent acts if the defendants are to be held jointly and severally liable as in McDonald and Law, and when there is not such concurrence and there is a dispute, as here, as to which collision caused the damage, plaintiff must make a showing to divide the injury as between defendants, show the damage done by each, to make a case for the jury.

We believe the answer to all of appellant's contentions and the correct rule of liability in consecutive collision cases is expressed in the following cases. Maddux v. Donaldson, 362 Mich. 425, 108 N.W.2d 33, 37, and citations; Reed v. Mai, 171 Kan. 169, 231 P.2d 227; Murphy v. Taxicabs of Louisville, Inc., Ky., 330 S.W.2d 395, 397, 398; and Phillips Petroleum Co. v. Hardee, 5 Cir., 1951, 189 F.2d 205, 212. The rule is, where two or more persons acting independently are guilty of consecutive acts of negligence closely related in point of time, and cause damage to another under circumstances where the damage is indivisible, i. e., it is not reasonably possible to make a division of the damage caused by the separate acts of negligence, the negligent actors are jointly and severally liable. The damage is indivisible when the triers of fact decide that they cannot make a division or apportionment thereof among the negligent actors. Restatement, Torts, Vol. 4, § 879; and 38 Am.Jur. Negligence, § 257, pp. 946, 947.

III. Appellant contends it was error to submit the case to the jury on the theory of res ipsa loquitur. It is a rule of evidence permitting an inference of negligence allowing the plaintiff to make a case for the jury and shifts the burden of explanation to the defendant when the evidence produced by plaintiff shows defendant was in exclusive control of the instrumentality causing the injury and the occurrence is such as ordinarily would not have occurred in the absence of negligence. Harvey v. Borg, 218 Iowa 1228, 1230-1232, 257 N.W. 190; Edwards v. Des Moines Transit Company, 251 Iowa 163, 99 N.W.2d 920; Shinofield v. Curtis, 245 Iowa 1352, 66 N.W.2d 465, 50 A.L.R.2d 964; and Eaves v. City of Ottumwa, 240 Iowa 956, 38 N.W.2d 761, 11 A.L.R.2d 1164. Where the precise cause of the injury clearly appears the rule is inapplicable. Eaves v. City of Ottumwa, supra. And it is applied sparingly as a matter of...