*1 43,908 No. Danny minor, Gardner, L. through Gardner, Mother, Friend, Next Natural Guardian and v. Ervin Appellant, Appellee. E.
(398 293) P. 2d Opinion January 23, filed 1965. Cranmer, Wichita, argued cause, Michaud, Russell and Gerald L. Syrios, Wichita, Orval L. Fisher M. William all of were with him on the appellant.
briefs Siefkin, Wichita, argued cause, Ward, Robert M. D. M. of Pea- Powers, Smith, Carter, body, George Eberhardt, B. Carl T. F. Stuart R. Miller, Partridge, Harris, Foulston, C. Malcolm Robert N. Robert Richard C. J, Sawatzky, Cordes, Howard, Woodin, Donald L. Robert L. Gerald Charles Benjamin Stout, Badger Wichita, Langel, Mikel L. Ronald K. C. all of appellee. with him on the briefs for of the court was delivered opinion Hatcher, C.: This stems from an action for re- damages sulting injuries sustained in at a automobile collision street intersection. necessary
The facts the limited issue to present be considered may be abbreviated.
The plaintiff, old year boy, riding in an brother, automobile being driven his 16 old year John, on 1961. evening May north on They proceeded Hillside Boulevard, Street to Wichita, where it intersects George Washington Kansas. As they approached the intersection the turned signal light
green north-bound Hillside and they traffic proceeded into the intersection. At the same the who was south proceeding *2 Street, on Hillside entered the intersection and made a left hand turn. A collision occurred between the automobiles at the southeast quadrant of the intersection.
Separate wex-ebrought by each of the two boys, Danny L. Gardner and Gardner, III, A. mother, through their as their friend, natural guardian and next re- cover damages for their personal injuries. A separate action was also brought by mother, Evanne Gardner, to recover damages by reason of the loss of services of Gardner and expense his for medical care and treatment. The claim for loss of services was
later withdrawn.
After the issues were framed by the individual case Ervin E. Pereboom, case, the defendant in each filed a motion to consolidate the three separate cases. Arguments were presented on the motion following which the lower court entered an order solidating the cases for trial. cases
The to trial proceeded which for all practical purposes conducted case in as one three counts. The returned a verdict “in favor of the against which was plaintiffs,” approved Motions for new trial on behalf of each plaintiff were overruled were taken. The present controversy involves the L. Gardner. appeal Danny first contends the trial court erred in consoli- the three dating cases for trial. We are forced conclude that the consolidation was erroneously ordered.
At the time the cases were tried the statute to consoli- pertaining dation of actions read: pending might “Whenever two or more actions are court which joined, may, have been the defendant on motion and notice to the adverse party, require why consolidated, him to show cause shall same not be
if no cause be shown the said several actions shall be consolidated. (Emphasis supplied. 1949, S. 60-765.) G. be noted that actions which are to be consolidated are which “might those have been reason joined.” for this provision apparent when effect of under consolidation the provisions of the statute are considered. In Western Shale Products Co. v. Scott, City Fort 266 P. 2d we held: “The effect of a or more consolidation of two actions under G. S. merge single purpose 60-765 is to unite them action into of all though proceedings same as different causes action had future been single (Syl. 7.) joined in a action.” G. S. look to 60-410 determine We who bemay joined plaintiffs: persons having subject action, obtaining “All an interest in the demanded, joined plaintiffs, except provided relief be as otherwise in this article.” joinder also G. prohibited by S. 60-601 which pro-
vides: plaintiff may “The unite several petition, causes action in the same whether
they be such legal equitable, as have been heretofore denominated or or both. action, But the causes of such action so united must affect all the except in mortgages actions to or enforce other liens.” Individuals suing for damages resulting incurred injuries in the same automobile collision do not have an interest same subject matter. Each is own suing his personal injuries. *3 Neither are they interested in the same relief. in Each interested in relief for his own personal injuries. question was before us in the recent case of v. Co., 558, Fields Anderson Cattle Kan. 193 276, 2d 396 P. it where said was at 562: page appellants damages injuries respective “Insofar as claimed for to their health being separate, necessarily and mental personal well the claims are distinct and appellant only recovering to damages each other. Each is concerned with for personal injuries regard his own without to those sustained other. The claims on which the causes action so united are based affect do not parties joinder 1949, prohibited to the action and their G. S. 60-601. question City Dorado, was “The before this court in v. El Watkins 183 363, opinion: page Kan. 327 2dP. is stated it “ question appellees may joint ‘Thus we come whether unite in one damages injuries respective cause of action claims for their for to health and being. respect that well It be added with such to we no have difficulty concluding separate, the involved claims are distinct and neces- sarily personal appellee. conceding appellees’ to each In other words com- indicated, against plaints, appellant limited as heretofore in the second identical, appellee the fact remains cause action are that is concerned recovering only damages personal injuries regard with for his own without to pointed sustained the other. Indeed in this connection those should be brief, notwithstanding arguments that in their inconsistent out to contrary, expressly appellees permanent “the concede instant case is for one land, distinguished damages buildings crops, etc., joined to and/or personal injuries.” an action for Under conditions and circumstances with court, construing doubt that this can be no force and there effect to be 1949, 60-601, provisions provisions given the of G. S. and earlier of our code import, long procedure of like held that causes im- of action are of civil ” also, premise.’ (See, properly joined subject a demurrer based on that Holland, Co., Mortgage 655; Oil & Gas Co. v. Dunn v. 113 Kan. 213 Pac. Co., 1044; Packing v. C. K. 114 Kan. 220 Pac. Crisler Kan. 703.) 309 P. 2d contends that the actions were consolidated separate Cook, our attention to Lardner v. for trial and calls 266, 103 is stated: P. 2d where it being filed in the district courts Linn and Bourbon counties “The actions court, They pending but in and distinct in the same courts. were action, they joined did not all as one involve could not have been Obviously stipulation res. then the did not create one nor the same separate and The actions remained distinct so far as out of four. lawsuit dockets, (p. 270.) judgments were concerned. There in the Lardner case consolidate the attempt one; rather, the consent of the with parties agreed determine decision in one action should the decision court that the case before us the cases actions. In the now in all of the other counts. There was but one verdict and case with three tried as one one judgment. is not entitled to raise contends next
Appellee in this appeal because alleged of consolidation the question for a new trial. his motion not raised on error was error was included his motion that suggests The appellant read: “because of erroneous part trial under new need not the court.” We pause here instructions rulings suffice contention. to say of this the merits to consider directed at the motion not a trial on a made an order in the motion for a included new as a not be need error and this court. distinction between review prerequisite errors motions for a necessitating new on motions orders *4 out in Federal Land Bank set v. clearly Rich review trial before 2d 1005 and Halleck, 73 P. McDermott v. ardson, Kan. 335. 403, 69Pac. 65 Kan. is defined motion by by G. authorized S. 60-3001 trial
newA
follows:
in the same court
is a reexamination
of an issue
fact
trial
of
after
“A new
report
jury,
a referee
a decision
of
or
a
.
.
.”
a verdict
to the
such as a
pleadings
addressed
motion for
motion
A
actions,
of
or the dismissal of
action because
a mis-
of
solidation
error,
a trial
but if
erroneous,
does not result in
results
joinder,
an error before the trial has
begun.
question was
dis-
fully
cussed in Wagner
Co.,
v. Railway
ings
approved by the court. has failed the appellant dissenting: opinion In my J.,
Schroeder, the trial record that from the affirmatively appear to make it error. prejudicial committed forth in set the law this by
On the record presented has no opinion application. court’s order con- court for an moved the the appellee
In the lower court 13,331, 13,329, 13,330 and in two Nos. three cases solidating (Case court. The to this perfected have been separate appeals represented three cases each of the appellant to this court.) in the in the trial court and counsel “for be served the interest of justice for the reason that three cases will consolidate solidation, failure to and that a trial of and the court to all higher parties resolve in expenses added.) the issues.” (Emphasis and entered to consolidate the motion
The trial court sustained effect. The to that September, 27th day order dated the presented were “arguments” recited that “Order of Consolidation” motion. on the an objection said the record discloses to the consoli-
If it could be order, recital in the dation, arise from such then only by it must “arguments.” Upon argument construction word a strained counsel for the before this court contended of the case counsel as to the disagreement between consolidation there was court. The difference of opinion cases in the lower between of these on this point must be resolved respective parties counsel my opinion and in mere recital that there presented, record the motion to consolidate is to dis- insufficient “arguments” were to the consolidation of these appellant any objection close disclose upon affirmatively The burden is cases. record on appeal. a sufficient an objection in the record to disclose Nothing appears any objection further connection, of these cases. In this attention is in- the consolidation Order of “Findings Pretrial Conference.” Under vited in such order the court noted all heading “Jurisdiction” Kansas, County, court of the district Marion and recited: *6 captioned the above of of all three ordered consolidation “The Court cases.” order pretrial of Law” Issues “Contested heading
Under the issue as an not mentioned cases was the three of the consolidation on the negligence (a) were: specified issues in controversy. the of part on defendant; negligence contributory (b) of the part to the plain- as venture of joint the (c) and plaintiffs; the tiffs. No. 8 given by also invited to instruction Attention is reads: your jurors duty instructed that it is “You are in this matter to determine following facts: defendant, Pereboom, guilty any negli- Ervin E. “1. Whether was of proximate gence was a cause of the collision. which plaintiff guilty any negligence “2. Whether the A. Gardner III was of John proximate awas cause of the collision. which Danny Gardner, plaintiff, guilty negligence any L. “3. Whether of was proximate cause of the collision. which was a items, “Having following considered above three then the instructions guide matter, given you help you to a in this are decision to-wit: you only proximate,cause from the that the “First: If find evidence sole and Pereboom, negligence of Ervin E. that the accident was neither of John Gardner, Danny guilty any negligence III or L. was of A. Gardner which was accident, you proximate of the then return a verdict for a cause should John III, injury any, you Gardner, damages, if find case for whatever A. in his a he result of collision. suffered Danny Gardner, should likewise return a verdict behalf “You of L. in case, damage, any, you injury or if his whatever he find suffered a re- accident. sult of the a verdict in likewise return favor of Evanne “You should Gardner for the any, you expenses, that Danny if find she incurred in medical behalf of Gardner. you proximate evidence that If find from the the sole and “Second: cause negligence Gardner, III, of A. the accident was and that of John negligence guilty any proximate was not of awas cause Pereboom of simply accident, you in then should return verdict favor of Ervin E. against plaintiffs, III, all to-wit: A. Gardner, of Pereboom John Gardner, Gardner. and Evanne L. Danny you proxi- that find from the evidence the accident was If caused “Third: negligence Gardner, III, mately both A. and the John Pereboom, plaintiff Danny guilty L. Gardner was not E. that Ervin proximate negligence contributory which was cause accident or his event, bring you Danny injuries, any, should in if then in a verdict for L. damages, any, if in in the amount that he received acci- Gardner Gardner, Danny you you find in favor of L. should In event then dent. bring verdict for Gardner the amount of the medical ex- also Danny penses, had on behalf of L. Gardner. any, if she you “Fourth: proximately If find from the evidence that the accident was negligence Gardner, caused the combined of Ervin E. A. III, damages against then the law not assess the any them, them, but will leave them one where finds should you simply return a verdict behalf of the defendant Ervin E. Pereboom and against parties.” been made having No either of the objection parties to this instruction, it became the law of the case insofar as the consolida- is concerned and as to the tion of the cases law stated therein. Furthermore, the record does disclose that instruction No. 8 called to the trial court’s attention as erroneous at the hearing for a on the motion new trial. therefore respectfully
It is submitted the record in the instant to make an affirmative showing fails case appellant objected *7 to the consolidation of the three cases in question.
It an established rule of court this that a party cannot invite the trial court error in rely upon error in the appellate judgment. for a reversal jurisdiction trial court had of the parties and of the subject matter, cases, and if it was error to consolidate these the appellant failed to make affirmatively appear by the record that preju- dicial error has been committed. presented by
The evidence record was sufficient to support verdict favor appellee, and against of the three plaintiff which were consolidated for trial. There find, was evidence from which the could find, did apparently appellee was not guilty of any negli- which was a gence proximate cause of the collision. therefore respectfully submitted the judgment of the lower court in the instant should be affirmed.
Price JJ., join the foregoing dissent. Fatzer,