Davis v. Wilde

SHINN, P. J.

The present appeal is by Ruben Wilde and Frank La Fontaine from an order refusing to strike from the cost bill of plaintiffs, Richard A. Davis and Robert E. Platt, certain items of costs and disbursements claimed by the latter.

Davis and Platt sued John F. Schaefer, Joseph S. Schaefer, Jean Fowler Schaefer, Ruben Wilde and Frank La Fontaine for the recovery of damages resulting from injuries sustained by plaintiffs in the collision of their automobile with one driven by John F. Schaefer, a minor. Joseph and Jean Schaefer were joined as defendants under allegations that they had signed the application of their son for a driver’s license pursuant to former sections 350-352 of the Vehicle Code (now §§ 17700-17710). Wilde and La Fontaine were named as defendants in separate causes of action in which it

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was alleged that said defendants had been employed to repair, inspect, maintain and adjust the brakes of the Schaefer car; they did the work negligently, the brakes were thereby caused to fail and the failure of the same proximately caused the Schaefer car to come into collision with that of the plaintiffs. In a jury trial both plaintiffs recovered judgment against defendants Wilde and La Fontaine, alone, and the defendants Schaefer were awarded judgment against plaintiffs for their costs of suit.

Admittedly, the Schaefers having prevailed, they were entitled to recover the amount of their costs and disbursements from plaintiffs. Defendants Schaefer filed a memorandum of costs claiming the sum of $487.30. Plaintiffs filed a memorandum of costs claiming $547.75. Wilde and La Fontaine made a motion to tax costs supported by an affidavit of one of their attorneys by which it was shown that the costs claimed by plaintiffs included all the items making up $487.30 as the costs claimed by the Schaefers, none of which had been expended or incurred by plaintiffs. These included clerk’s fees, jury fees, witness fees and fees for the serving of process, all of which had been expended by the Schaefers alone and for which plaintiffs were liable to the Schaefers. The motion of Wilde and La Fontaine was denied.

Under the theory of plaintiffs, adopted by the trial court, where two or more tortfeasors are charged with liability for negligence, and one is held liable to the plaintiff and the other not, the former must bear not only the costs of the plaintiff but those of the successful defendant as well.