Maddux v. Donaldson

Black, J.

(concurring). With advent of modern motor transit and traffic, the courts of the States are regularly confronted with a new and progressively vexing problem, that of instructing juries properly when a provenly innocent plaintiff is shown as having been injured in the course of multiple or chain vehicular collisions caused by 2 or more negligent motorists.

This case, unlike Meier v. Holt, 347 Mich 430, in fact (see footnote pp 440, 441 of Meier’s report), is one where it cannot “certainly” be said that the injuries suffered by each plaintiff would have resulted, absent concurrence of the successive negligent acts *450of Donaldson and Bryie. Such fact brings into play Judge Cooley’s summary of that which Justices Smith and Carr do not with usual eurythmics see eye to eye upon. I refer to the following (quoted in Meier, pp 438, 439):

“Although it is not always definitely so stated the rule seems to have become generally established that, although there is no concert of action between tortfeasors, if the cumulative effect of their acts is a single, indivisible injury, which it cannot certainly be said would have resulted but for the concurrence of such acts, the actors are to be held liable as joint tort-feasors; whereas, if the results, as well as the acts, are separable, in theory at least, so that it can be said that the act of each would have resulted in some injury, however difficult it may be as a practical matter to establish the exact proportion of injury caused thereby, each can be held liable only for so much of the injury as was caused by his act.” 1 Cooley on Torts (4th ed), § 86, pp 279, 280.*

Having signed Mr. Justice Smith’s opinion in this case, I would openly avow what was, and what is to be. Until now the Michigan rule has been settled. Where 2 or more wrongdoers separately cause the plaintiff to suffer an unknown or uncertain part or portion of the damages he has shown, each— hitherto — stood responsible to the plaintiff only for the harm caused by his tort, however difficult it may have been to establish the same. Albrecht v. St. Hedwig’s Roman Catholic Benevolent Society, 205 Mich 395; Frye v. City of Detroit, 256 Mich 466; De Witt v. Gerard, 274 Mich 299; De Witt v. Gerard, 281 Mich 676; Meier v. Holt, 347 Mich 430.

In the past we have differed not upon the rule but upon its admittedly difficult application. See Meier, page 439. Now we affirm that, where the trier or *451triers of fact find they cannot ascertain the amount of damages each, wrongdoer has inflicted, then such trier or triers are authorized to assess the plaintiff’s damages against any one or all of such wrongdoers on ground that the latter have — in law — participated in the infliction of “a single, indivisible injury.” This, it seems to me, is the only way to avoid the difficulties of our present rule.

These sentiments are recorded solely that lawyers may know that the former rule is now definitely modified to the extent, and only to the extent, we now attest by majority vote. Otherwise such former rule remains in full force.

This passage follows, almost immediately, the Cooley quotation Justices Smith and Carr have considered in their respective opinions.