Summary
In Garbe, the plaintiff was driving her car on a bridge when a man named Kent Herbig struck the rear of her car, causing her car to swing around and land partially in defendant's lane of travel.
Summary of this case from Hicks v. PrelippOpinion
No. 31448
Decided December 22, 1948.
Negligence — Concurrent negligence defined — Earlier and later wrongdoers are concurrent tort-feasors — Their combined negligence is the proximate cause of injury, when — Unqualified release of one concurrent tort-feasor, releases all concurrent tort-feasors, when — Payment by one concurrent tort-feasor, relieves other from liability, when.
1. Concurrent negligence consists of the negligence of two or more persons concurring, not necessarily in point of time, but in point of consequence, in producing a single indivisible injury.
2. Where the negligence of an earlier wrongdoer remains a dangerous force until the negligence of a later wrongdoer concurs and combines with it to cause injury, the wrongdoers are concurrent tort-feasors and their combined negligence becomes the proximate cause of the injury.
3. An absolute unqualified release in full satisfaction and discharge of one or more of several joint or concurrent tort-feasors answerable for a single injury, implies the receipt of full satisfaction for the injury sustained and for that reason is a release of all such tort-feasors unless such release contains an express reservation of the right to pursue other of such tort-feasors than those so released.
4. Payment by one concurrent tort-feasor for his release from the injured person, even though not in full payment of the damage suffered but only in full payment of the claim of the injured person against him, operates to relieve from liability other concurrent tort-feasors likewise liable for the same tort, unless the injured person reserves the right to pursue such other concurrent tort-feasors for the remainder of his damage.
APPEAL from the Court of Appeals for Lucas county.
This is an action to recover a judgment for personal injuries and property damage claimed to have been sustained by the plaintiff, appellee herein, in a collision between the automobiles operated by the plaintiff and defendant, appellant herein, on the Anthony Wayne bridge in Toledo on March 19, 1942.
While plaintiff was operating her automobile in an easterly direction on the most southerly of the four traffic lanes over the bridge, she met one Herbig (not a party to this action) operating an automobile and proceeding in a westerly direction. Herbig turned his car diagonally to the south, struck the rear end of plaintiff's car and turned it crosswise of the bridge. Plaintiff's car came to rest headed in a northerly direction, with the front of the car extending about a foot into the northerly side of the center line of the bridge highway.
While plaintiff's car was so at rest and had been at rest for five or six seconds, during which time the plaintiff turned off the ignition and was about to leave her automobile, the defendant, Halloran, in operating his automobile in an easterly direction on the right side of the bridge, drove it into the center of the left side of plaintiff's automobile, causing alleged injuries to the plaintiff and damage to her automobile.
The plaintiff sought recovery from the defendant in the sum of $5,000 for her personal injuries and, in addition, $350 as representing the damages to her automobile, on the grounds that the defendant operated his car at a high rate of speed and violated the assured-clear-distance-ahead statute, Section 6307-21, General Code.
The defendant, as one of his defenses, alleged in his answer and proved at the trial that the plaintiff, before the institution of this action, made a settlement with Herbig, whose car first struck the plaintiff's car, for the sum of $360, and in consideration of the sum so paid her executed to Herbig an unqualified release without reservation of rights against any other person and in full settlement of all claims and demands against Herbig on account of the injuries and damages suffered by the plaintiff. In such settlement, both plaintiff and Herbig were represented by counsel. The collision of plaintiff's car with Herbig's car caused damage to her car, admittedly not exceeding the amount of $50.
In her reply, the plaintiff alleged that the injury caused by the defendant was a separate and distinct one which occurred after the collision with Herbig's car and had no connection with it, and that the defendant and Herbig were not joint or concurrent tortfeasors.
At the close of all the evidence the trial court directed a verdict for the defendant on the ground that there was no proof of negligence of the defendant. The trial court declared also that the plaintiff executed an unqualified release to Herbig in full satisfaction of her claims arising out of the accident and, therefore, effected the discharge of the defendant. A motion for new trial was overruled and judgment was entered for the defendant.
On appeal, the Court of Appeals reversed the judgment of the trial court and remanded the cause for a new trial, on the ground that the trial court should have submitted to the jury, under proper instruction, the following issues:
"1. Whether the defendant was guilty of negligence proximately causing plaintiff's damage.
"2. Whether the defendant and Herbig were concurrent tort-feasors, and if so
"3. Whether the release granted Herbig was general and unqualified and contained no reservation.
"4. Whether the amount received from Herbig was in full payment of the damage suffered by plaintiff or should be applied thereon pro tanto."
Messrs. Winchester Winchester, for appellee.
Messrs. Effler, Eastman, Stichter Smith and Mr. Jamille G. Jamra, for appellant.
The Court of Appeals held that there was sufficient evidence of negligence on the part of the defendant to take the case to the jury on that issue, and this court is in accord with that view. The Court of Appeals took the view also that, although "a presumption of negligence does not arise from the mere fact that a collision occurred" ( Pitt, Admx., v. Nichols, 138 Ohio St. 555, 37 N.E.2d 379), and that "neither negligence nor contributory negligence is presumed [ Bush, Admr., v. Harvey Transfer Co., 146 Ohio St. 657, 669, 67 N.E.2d 851], * * * the evidence discloses circumstances from which a rational conclusion might be drawn that the defendant violated the 'assured-clear-distance-ahead' provision which constitutes negligence per se [ Tresise v. Ashdown, Admr., 118 Ohio St. 307, 160 N.E. 898, 58 A. L. R., 1476]." That court in its opinion also made the pertinent observation that "situations may arise and collisions may occur under circumstances which provide a legal excuse to the person charged with the violation of the statute, but in order to avoid the legal imputation of negligence per se, the motorist must establish that, without his fault, and because of circumstances over which he had no control, compliance with the law was rendered impossible ( Hangen, a Minor, v. Hadfield, 135 Ohio St. 281, 20 N.E.2d 715; Smiley v. Arrow Spring Bed Co., 138 Ohio St. 81, 87, 33 N.E.2d 3)."
The facts in this case are substantially undisputed. The defendant's car collided head on with the side of plaintiff's car and he made no claim in his answer nor did he elicit by evidence that his assured clear distance ahead was cut off by circumstances over which he had no control. Plaintiff's petition charged the defendant with a violation of the statute, and, although the defendant denied negligence generally, he made no affirmative defense, by way of excuse, for his colliding with plaintiff's car and did not offer himself as a witness in his own defense. Under the evidence, the negligence of the defendant was clearly shown and the case should have gone to the jury for award of damages, unless there were other grounds upon which the court could properly have directed a verdict for the defendant.
There remained for consideration the question whether there was concurrent negligence of Herbig and the defendant, which was the proximate cause of the injuries to the plaintiff and the damage to her car, and, if so, whether the release which she gave to Herbig effected the discharge of the defendant.
The Court of Appeals took the view that those issues were for the jury. This court, however, under the undisputed testimony, takes the view that the trial court was warranted in resolving them in the affirmative as a matter of law, and properly directed a verdict for the defendant.
In her reply to defendant's answer setting up concurrent negligence and unconditional release of Herbig, the plaintiff denies that "Herbig was jointly and concurrently negligent with the defendant above named, Robert Halloran, in causing the injuries and damage complained of in her amended petition, but says that the injuries and damage complained of * * * took place after the occurrence with said Kent Herbig, and had no connection whatever therewith * * *." However, the facts show otherwise. Herbig's driving across the traffic lane into the rear end of plaintiff's car turned it around directly across the southerly traffic lanes so that it completely blocked the overtaking traffic lane from the west next to the center line on the bridge and placed plaintiff and her car in a most dangerous position with reference to oncoming traffic from the west. In fact, because of the position in which her car had been placed by the negligent driving of Herbig, resulting in the first collision, the plaintiff deemed it necessary to recite in her petition the facts relating to the Herbig collision and the resultant position of her car, in order to avoid the imputation to her of negligence. From the undisputed evidence it is clear that the second collision would not have occurred if plaintiff's car had not been placed in a hazardous position by the first collision. That Herbig contributed to the second collision is demonstrated by the application of the premise that consequences are in fact caused by a course of conduct if they would not have happened but for the conduct in question. Heiting v. Chicago, R.I. Pac. Ry. Co., 252 Ill. 466, 96 N.E. 842, Ann. Cas. 1912D, 451; Camp v. Wilson, 258 Mich. 38, 241 N.W. 844; 20 California Law Review, 396.
Concurrent negligence consists of the negligence of two or more persons concurring, not necessarily in point of time, but in point of consequence in producing a single indivisible injury. Here, the consequence of Herbig's negligence — the placing of plaintiff's car in a zone of danger — concurred with the negligence of the defendant in driving his car into plaintiff's car so misplaced, and thus the combined negligent acts of Herbig and the defendant, occurring so close in point of time as not to break the chain of causation, concurred in point of consequence to injure plaintiff and further damage her car.
In the case of Burke v. Hodge, 217 Mass. 182, 104 N.E. 450, the negligence of an earlier wrongdoer remained a dangerous force until the negligence of a later wrongdoer combined with it to cause injury. The court held that the wrongdoers were concurrent tort-feasors and that their negligence was the proximate cause of injury to the plaintiff. See, also, Sawdey v. Producers' Milk Co., 107 Cal.App. 467, 290 P. 684.
The plaintiff herself treated the defendant and Herbig as concurrent tort-feasors. The fact that she accepted from Herbig, in settlement with him, a sum of money greatly in excess of the amount representing the damage done to her car in the first collision estops her from claiming that he was not concurrently responsible and liable with the defendant for the damage done in the second collision. In the opinion of this court, the undisputed evidence shows that Herbig and the defendant were concurrent tort-feasors as to the second collision with plaintiff's car.
Assuming that Herbig and defendant were concurrent tort-feasors, the fact that Herbig paid to the plaintiff a sum much larger than that represented by the amount of damage done by him in the first instance, coupled with the fact that in connection with such settlement the plaintiff executed to him a general and unqualified release without the reservation of any rights against another person, which is clearly shown by the evidence, precludes plaintiff's recovery from the defendant. An absolute unqualified release in full satisfaction and discharge of one or more of several joint or concurrent tort-feasors, answerable for a single injury, implies the receipt of full satisfaction for the injury sustained and for that reason is a release of all such tort-feasors, unless such release contains an express reservation of the right to pursue other of such tort-feasors than those so released. Adams Express Co. v. Beckwith, 100 Ohio St. 348, 126 N.E. 300; Cleveland Ry. Co. v. Nickel, a Minor, 120 Ohio St. 133, 165 N.E. 719; Tanner v. Espey, 128 Ohio St. 82, 190 N.E. 229; Davis, Admx., v. Buckeye Light Power Co., 145 Ohio St. 172, 61 N.E.2d 90.
Payment by one concurrent tort-feasor for his release from the injured person, even though not in full payment of the damage suffered but only in full payment of the claim of the injured person against him, operates to relieve from liability other concurrent tort-feasors likewise liable for the same tort, unless the injured person reserves the right to pursue such other concurrent tort-feasors for the remainder of his damage.
The judgment of the Court of Appeals is reversed and the judgment of the Court of Common Pleas is affirmed.
Judgment reversed.
MATTHIAS, SOHNGEN and STEWART, JJ., concur.
WEYGANDT, C.J., TURNER and ZIMMERMAN, JJ., dissent.
The majority opinion holds that the evidence in this case establishes as a matter of law that Herbig and the defendant, Halloran, were concurrently negligent in causing plaintiff's damage, and consequently the general release without reservations given by plaintiff to Herbig, upon a substantial consideration, operated to release the defendant.
"Concurrent negligence" arises where an injury is proximately caused by the concurring wrongful acts or omissions of two or more persons acting independently. And concurrent negligence which may impose liability on two persons acting separately need not necessarily be simultaneous, if it is so conjoined as to contribute directly to the injury produced.
The evidence in this case shows that plaintiff's automobile was damaged to some extent and turned in a crosswise position by Herbig's negligence. The evidence discloses that some six seconds later while plaintiff's automobile was in the same position defendant drove into it further damaging the automobile and injuring plaintiff personally.
In my opinion such a situation presents a question of fact for submission to a jury. It was for the jury to say whether Herbig's negligence was so continuous and lasting that the act of the defendant, if negligent, united with Herbig's negligence to produce the injuries, or whether the defendant was chargeable with a separate and independent act of negligence which brought about the injuries attributed to him.
As I view the matter, the judgment of reversal and remand by the Court of Appeals was correct.
WEYGANDT, C.J., and TURNER, J., concur in the foregoing dissenting opinion.