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Dingilius v Bruno [1974] TTLawRp 16; 6 TTR 474 (22 February 1974)

6 TTR 474

ICHIRO DINGILIUS, Plaintiff

v.

CORNELIO BRUNO, Defendant

Civil Action No. 564

Trial Division of the High Court

Palau District

February 22, 1974

Auto negligence action. The Trial Division of the High Court, D. Kelly Turner, Associate Justice, held that where driver of plaintiff's auto entered road and turned left, and auto approaching from that direction, which driver of plaintiff's auto saw and thought was not too close, was being passed by another auto, which he did not see and which hit him before its driver, defendant, could return to his lane, defendant, who prior to civil suit had been convicted of reckless driving, making him negligent as a matter of law with respect to the occurrence, was liable.

1. Negligent Driving-Evidence-Criminal Conviction

Negligent driving conviction established prima facie liability for negligence in civil proceeding involving same collision as that which led to conviction.

2. Actions-Effect of Conviction on Civil Action

Criminal conviction for an act does not preclude recovery in a civil action for harm caused by that act.

3. Torts-Negligence-Proximate Cause

Negligence does not give rise to liability for an injury unless it was the proximate cause of the injury.

4. Torts-Negligence-Proximate .Cause·

A cause, to be the proximate cause of an injury, need not be the sole cause, and the concurrence of other causes in producing the injury does riot relieve defendant from liability unless it is shown that the other causes would have produced the injury independently of defendant's negligence.

5. Negligent Driving-Particular Cases

Where driver of plaintiff's auto entered road and turned left, and auto approaching from that direction, which driver of plaintiff's auto saw and thought was not too close, was being passed by another auto, which he did not see and which hit him before its driver, defendant, could return to his lane, defendant, who prior to civil suit had been convicted of reckless driving, making him negligent as a matter of law with respect to the occurrence, was liable.

6. Torts-Damages-Before and After Value.

The standard measure of property damage resulting from a tort is the difference in value before and after the damage.

7. Torts-Damages-Before and After Value

Auto one year old at time defendant negligently damaged it would be taken to have depreciated one-third of its original $2,100 cost, and where it was not worth repairing, but had a $650 salvage value, the recovery would be $1,400, the value immediately before damage, minus $650, which would give the value immediately after the damage.

TURNER, Associate Justice

At the commencement of trial for this automobile accident damage suit counsel for plaintiff moved to substitute Ichiro Dingilius, father of Ronny Ichiro, as plaintiff. Although Ronny was driving an involved vehicle at the time of the collision with defendant's car, the plaintiff's automobile had been purchased by Ichiro. At the time for trial Ronny was off island attending school Defense counsel made no objection to the motion for substitution of parties and it was accordingly granted and the caption of the case changed.

Determination whether defendant was liable for negligence depended upon testimony of a passenger in plaintiff's vehicle at the time of the accident, the testimony of the defendant and of a passenger riding with him at the time. Also submitted in evidence relative to liability was the police sketch made a t the scene after the accident together with the record of District Court Criminal Case No. 8367 in which defendant was found guilty of the criminal offense of negligent driving.

[1] This criminal conviction establishes prima facie liability for negligence in the civil proceedings. This Court said in Mechol v. Kyos, 5 T.T.R. 262, 274:-

"When conduct which results in harm to another is defined by statute as a criminal act it is negligence per se. Quoting from Pratt v. Daly, 104 P.2d 147."

[2] The fact that an individual is convicted of a criminal act with resulting harm to another does not preclude recovery in a civil action for damages for the harm inflicted. Moolang v. Figir, 3 T.T.R. 455.

[3] A finding of negligence does not, however, create liability for an injury. The negligence of the defendant must be the proximate cause of the injury. It is said in 57 Am. Jur. 2d, Negligence, Sec. 142:-

"If the inquiry as to cause in fact shows that defendant's conduct, in point of fact, was not a factor in causing plaintiff's damage, the matter ends there, but if it shows that his conduct was a factor in causing such damage, then the further question is whether his conduct played such a part in causing the damage as makes him the author of such damage and liable therefor in the eyes of the law."

[4] A cause to be the proximate cause need not be the sole cause of the injury. The fact that other causes concurred with the negligence of a defendant in producing the injury, does not relieve the defendant from liability unless it is shown the other causes would have produced the injury independently of defendant's negligence.

In the present case defendant sought to attribute the blame for the accident upon plaintiff. This would be a valid defense only if the proximate cause of the accident was the conduct of the plaintiff when he drove onto the road in front of defendant's approaching vehicle. This would be a defense even in the present situation where defendant was convicted of the criminal act of negligent driving which established defendant's negligence as a matter of law.

The text writer said in 52 Am. Jur., Torts, Sec. 33,

"It is a general rule, however, that an unlawful act must be a proximate cause of an injury, if liability is to be predicated thereon, and this rule applies to acts in violation of a statute."

[5] In the present case there is very little dispute as to the course of events. Plaintiff and his passenger pulled onto the road in front of the High School immediately west of the Japanese gate pillars on the north edge of the road and made a left turn to the east at the entrance road from the government compound on the south side of the road. Plaintiff's passenger testified he and the driver saw a car approaching from the east but that it was far enough to make, the left turn.

What was not seen in time was defendant's car passing the approaching car. Defendant swung into his left lane to make the pass and did not return to the right lane in front of the car he passed in time to avoid hitting the left rear side of plaintiff's automobile.

Defendant admitted he was coming from the Boom Boom Room where he had "about four beers" and that he was traveling in excess of the speed limit at the time of the collision. Under the facts and applicable law the Court must hold the negligence of the driver was the proximate cause of the injury. Defendant, therefor, is liable for the damage done even if plaintiff's driver was contributorily negligent in turning into the highway.

The appellate division of this court sustained a trial finding of liability even though the plaintiff also was negligent. In Falewaath v. Rebelukan, 4 T.T.R. 527, the appellate court said:-

"The court also found, however, that appellant had acted in reckless disregard of the safety of the plaintiff, whose contributory negligence consequently did not bar recovery, citing Sec. 482, Restatement of the Law of Torts, Vol. 2, and Am. Jur. 2d., Automobiles and Highway Traffic, Sec. 362." 477

[6] Having ascertained defendant's liability it must be determined what the extent of it is. The rule of law for measuring property damage as result of a tort is a familiar one, decided many times by this Court. The value of the property (usually an automobile, as in the present case) before the injury less the value of the property immediately after the injury is the standard measure.

[7] It is improper for a plaintiff to claim as the value of his vehicle its purchase price new. Plaintiff's car was a Toyota sedan which cost new $2,100.00. The car was one-year old and even though it had been kept in good shape, free of previous accident, it had depreciated by not less than one-third based upon an average three-year "life expectancy" of an automobile in Koror. The value immediately before the accident was not in excess of $1,400.00.

After the accident the cost of repair did not justify the expenses. However, there remained substantial salvage value. The engine was unharmed and had a value not less than one-fourth of total value. Many additional parts such as tires, front wheels, headlights and numerous other small parts had value. Plaintiff's mechanic witness testified something under one-half value remained as salvage value. From this testimony the Court concludes the salvage value was approximately $650.00 and this amount deducted from the depreciated new car value must be the basis of recovery by the plaintiff.

Ordered, adjudged and decreed:-

1. That plaintiff shall have and recover from the defendant the sum of $750.00 together with interest on said amount at the rate of 6 % per annum from date of judgment until paid.
2. Plaintiff shall have such costs as he may claim in accordance with law.