Smith v. Rodene, 38119

• Decision Date: 06 October 1966
• Docket Number: No. 38119,38119
• Citation: 69 Wn.2d 482,418 P.2d 741
• Court: Washington Supreme Court
• Parties: Arnold J. McLean SMITH and Yvonne Smith, his wife, Respondents, v. John Doe RODENE and Helen L. Rodene, his wife, Ken Grimes and Jane Doe Grimes, his wife, George W. Joost, and Jane Doe Joost, his wife, Ken Grimes Produce Company, Rogge Commission Company, Alfred Rollin Bergeron and Jane Doe Bergeron, his wife, Appellants.

Page 482

69 Wn.2d 482

418 P.2d 741

Arnold J. McLean SMITH and Yvonne Smith, his wife, Respondents, v. John Doe RODENE and Helen L. Rodene, his wife, Ken Grimes and Jane Doe Grimes, his wife, George W. Joost, and Jane Doe Joost, his wife, Ken Grimes Produce Company, Rogge Commission Company, Alfred Rollin Bergeron and Jane Doe Bergeron, his wife, Appellants.

No. 38119.

Supreme Court of Washington, Department 1.

Oct. 6, 1966.

Jack E. Hepfer, Bruce Maines, Hullin, Ehrlichman, Carroll & Roberts, Seattle, Comfort, Dolack, Hansler & Billett, Tacoma, for appellant.

Leonard W. Schroeter, Seattle, for respondent.

BARNETT, Judge. ^*

As a result of two separate and distinct automobile collisions, plaintiffs, Arnold and Yvonne Smith, brought consolidated actions against (1) defendant Helen Rodene and (2) all of the remaining defendants, to whom we shall hereinafter refer, collectively, as 'Grimes.' The causes were tried to a jury, which returned a verdict on the first cause in favor of both plaintiffs against defendant Rodene in the amount of $17,603; and on the second cause in favor of plaintiff Yvonne Smith against defendants Grimes in the amount of $20,395. Appeal is taken by all defendants.

The first collision occurred on September 13, 1962. With Mr. Smith driving and his wife riding as a passenger, their automobile was stopped behind a preceding vehicle which was waiting to make a left turn off from Highway 99. The Smiths were struck from behind by an automobile driven by defendant Helen Rodene. As a direct result of this impact, the Smith vehicle was damaged in the amount of $338.07. Mrs. Smith received injuries to various parts of her body, for which she received immediate hospital treatment. She experienced headaches, pain in her neck, back and shoulders, and cramping of the hands and feet. Also, her knees and arms were bruised, and she experienced vomiting. During the months following this collision, Mrs. Smith underwent substantial treatment. By the time of the second collision, most of her injuries had subsided, but she continued to suffer from occasional headaches and pain in her neck and upper extremities.

Plaintiff Arnold Smith, as a result of the September, 1962, collision, suffered a bruised ankle and, for a short time, headaches. At no time did Mr. Smith seek medical treatment for these ailments. In November of 1962, 2 months later, and after experiencing difficulty in seeing out of his right eye, he consulted an eye specialist in quest of treatment. Thereafter, Smith received treatment for his eye ailment from several doctors, and, as a result of this attention, his visual problems had largely disappeared by April of 1963.

The second collision occurred on May 7, 1963. Again, Mr. and Mrs. Smith were riding in their compact English Triumph automobile, which was stopped at a traffic light in the city of Seattle. Immediately behind the Smith vehicle was a Ford produce truck, owned by Grimes Produce Company and operated at the time by an employee, Alfred Bergeron. The truck was driven, or rolled, slowly forward, a result of which was a slight impact with the Smith vehicle. Following this impact, Mrs. Smith again required extensive medical treatment, which was directed principally to relieve her discomfort from pain in her neck and upper extremities. Mr. Smith complained of no injury as a result of this second collision.

A complaint was filed by the Smiths in March, 1963, against defendant Rodene. In November, 1963, following the second accident, the original complaint was amended to include the Grimes defendants.

The case went to the jury solely on the damage issue, liability by all parties, by that time, having been admitted.

Error is first assigned to the giving of instruction No. 10, which, contend defendants, erroneously places upon them the burden of allocating the damages attributable to the respective collisions. Instruction No. 10 states in part:

In determining your verdict you will first determine the total amount of special damages suffered by the plaintiffs and the total amount of general damages. You will then determine how much of each of these total amounts the respective defendants are responsible for.

The defendants have the burden of proof of establishing by a preponderance of the evidence how the allocation, if any, is to be made between the defendants. (Italics ours.)

We find this to be an improper statement of the law as it obtains in this jurisdiction. It must be borne in mind that we have here two independent torts and two separate harms. The collisions were widely separated by both time and distance. Absent are the factors which give rise to joint tort liability. There was neither concert of action nor independent torts uniting to cause a single injury. Young v. Dille, 127 Wash. 398, 220 P. 782 (1923). Nor is this a multiple-collision case in which 'joint' liability is often imposed. See Maddux v. Donaldson, 362 Mich. 425, 108 N.W.2d 33, 100 A.L.R.2d 1 (1961), and an extensive annotation in 100 A.L.R.2d 16.

The instant case was tried upon the theory that there were two separate torts. Plaintiffs, in their complaint, alleged that, as a result of the second collision, the injuries which Mrs. Smith had sustained in the first became 'exacerbated and aggravated.' The liability of each defendant being several, and not joint, the burden is on the plaintiff to prove with reasonable certainty the amount of damages attributable to each collision. In Maas v. Perkins, 42 Wash.2d 38, 43, 253 P.2d 427 (1953), the plaintiff was the owner of certain real property upon which had accumulated a quantity of oil, sludge and waste. She brought suit against several neighboring landowners, joining them as party defendants, in which she sought an injunction and damages resulting from the undesirable deposits. At trial, plaintiff established the fact of defendants' liability, but produced no evidence to the effect that any particular defendant was responsible for a specific amount of her total damages. The trial court thereupon dismissed the case. Affirming, we said:

In her complaint appellant alleged that she was in doubt as to the person or persons from whom she was entitled to redress, and for that reason she was joining all of the named defendants. Such procedure is appropriate. * * *

This, however, does not relieve a plaintiff from the burden of proving that a particular defendant, whose liability is several rather than joint, caused damage to plaintiff in a specified amount. The difficulty of making such a showing is readily recognized. Unless it is done, however, the trial court has no basis in the evidence for allocating total damage between a number of severally-liable * * * tortfeasors * * *. (Italics ours.)

Insofar as instruction No. 10 places upon defendants the burden of apportioning the damages between them, it is erroneous. That the trial court recognized the correct principle of law is apparent from its giving of instructions No. 4 and No. 7. Instruction No. 4 states in part The burden of proof is on the plaintiffs to establish by a fair preponderance of the evidence the Nature and Extent of the damages sustained as a result of the Respective accidents. (Italics ours.)

Instruction No. 7 states:

You are instructed that, since there were two separate accidents in which the plaintiff, Mrs. Yvonne Smith was involved, that the Burden of proof rests upon Mrs. Smith to prove by a fair preponderance of evidence insofar as reasonably possible Which of her injuries are probably attributable to the first accident, and which of her injuries are probably attributable to the second accident. (Italics ours.)

Instruction No. 10, which we have held erroneous, is patently inconsistent with and contradictory to instructions No. 4 and No. 7. Their incompatibility is irreconcilable, thus requiring reversal. This court, in a long line of decisions, has consistently held that it is prejudicial error to give irrecconcilable instructions upon a material issue in the case. In Matteson v. Thiel, 162 Wash. 193, 197, 298 P. 333, 334 (1931), we quoted from Babcock v. M. & M. Const. Co., 127 Wash. 303, 220 P. 803 (1923):

'We have often held that, where instructions inconsistent and contradictory are given involving a material point in the case, their submission to the jury is prejudicial, for the reason that it is impossible to know what effect they may have upon the verdict. (Citing cases.)'

Hart v. Clapp, 185 Wash. 362, 54 P.2d 1012 (1936), was a case in which constributory negligence was raised as an affirmative defense. The trial court gave a correct general instruction that Defendant had the burden of proving all affirmative defenses. It also instructed, however, that Plaintiff had the burden of proving herself free from contributory negligence. We reversed a judgment in favor of the defendant for the reason that, the instructions, when read as a whole, were irreconcilable, in that they 'set up for the guidance of the jury contradictory rules pertinent to a material and vital issue in the case.'

Other decisions announcing essentially the same rule of law are Tuschoff v. Westover, 65 Wash.2d 69, 395 P.2d 630 (1964); Warran v. Hynes, 4 Wash.2d 128, 102 P.2d 691 (1940); and Clark v. Federal Motor Truck Sales Co., 175 Wash. 438, 27 P.2d 726 (1933).

Defendant Rodene makes a further assignment of error concerning the eye ailment suffered by Mr. Smith following the first accident, and the reception of evidence related thereto. It is defendant Rodene's contention that the eye condition suffered by Mr. Smith (to whom the jury granted a recovery of $1,396) was caused solely by his anxiety for his wife's condition, and the condition of his family during the period of her convalescence, and not by any injury directly attributable to the automobile collision. From this fact, defendant Rodene urges as applicable the rule of law that no recovery can be realized for injuries resulting from sympathy or...