Schwartz v. SwanSchwartz v. Swan
Plaintiffs, Dorothy Schwartz, Clarence Schwartz and Adelia Schwartz appeal from judgments entered on jury verdicts finding the issues in favor of defendants, on plaintiffs’ claims for personal injuries and loss of consortium. Proper presentation of the issues raised by the appeal requires a review of the pleadings, and of certain procedurаl questions which arose prior to trial.
Plaintiffs, Dorothy Schwartz and Clarence Schwartz, are husband and wife. Plaintiff, Adelia Schwartz, is the widow of the deceased brother of plaintiff, Clarence Schwartz.
On July 2, 1962, plaintiffs, Dorothy and Clarence Schwartz, filed a four count complaint in the Circuit Court of St. Clair County. In Count I, plaintiff, Dorothy Schwartz, alleges that on August 13, 1960, she wаs a passenger in an automobile operated by plaintiff, Adelia Schwartz, that while the car in which she was riding was stopped at a stop sign, automobiles driven by the defendants, Yada Abernathy, and Lawrence Allen Bray, collided, causing Yada Abernathy’s automobile to strike the automobile in which plaintiff was riding. This count contains the usual allegаtion of plaintiff’s freedom from contributory negligence, and charges the defendants with various acts of negligence.
Count II alleges that on August 23, 1960, plaintiff, Dorothy Schwartz was riding in an automobile being driven by plaintiff, Clarence Schwartz; that the automobile was struck by a car driven by defendant, Mary J. Polivick; that plaintiff was free of contributory negligence and defendant, Mary J. Polivick was negligent.
Count I alleges that in the occurrence on August 13, 1960, plaintiff, Dorothy Schwartz, suffered injuries to her head, neck and shoulders, that on August 23, 1960, her head, neck, shoulders, arms and hack were injured, and that she is unable to allege to what extent the occurrence of August 13, 1960, caused or contributed to her condition of ill bеing.
Count II alleges that the occurrence on August 23, 1960, in addition to the injuries caused thereby, aggravated the injuries suffered on August 13, 1960, and that she is unable to allege to what extent the injuries of which she complains resulted from either of the two occurrences.
In Count III, plaintiff, Clarence Schwartz, sues for loss of consortium resulting from the occurrence of August 13,1960, and in Count IV seeks to recover damages for loss of consortium suffered by reason of the occurrence of August 23,1960.
On July 3,1962, plaintiff, Adelia Schwartz, filed suit seeking to recover damages from defendants Abernathy and Bray for injuries allegedly suffered in the occurrence of August 13,1960.
Defendants, Bray and Polivick, answered the complaints. The three defendants, Bray, Polivick, and Abernathy, filed separate motions for severance of Counts I and II of the complaint in the case of Dorothy Schwartz and Clarence Schwartz. Defendant Bray, in his motion, stated that he had no part in the occurrence of August 23, 1960, cannot be held responsible for any injury caused plaintiffs on that date, and thе trial of issues involving two separate accidents would prejudice a substantial right to a fair and just trial, of the defendant, Bray. Defendant, Polivick, represented by the same counsel, in identical language, moved for severance for the same reasons. Defendant, Abernathy, in her motion, states that Counts I and II constitute entirely separate causes of action, involve claims against different defendants, allege different facts, and the evidence and instructions would be so complicated and canse such confusion as to make it impossible for the jury to comprehend the proceedings, making it impossible for defendant to receive a fair trial.
After hearing arguments of counsel, the court ordered a severance of the cases, directing that the counts pertinent to the occurrence of August 13, 1960, be severed from those pertinent to the occurrence of August 23, 1960, and further directing that they be thereafter treated as two separate cases, with different docket numbers.
Plaintiffs, Dоrothy Schwartz and Clarence Schwartz, sought to appeal from the order of severance, and this court (then the Fourth District) dismissed the appeal on the ground that the order of severance was not a final, appealable order.
Subsequent to the dismissal of the appeal, the court, over the objection of plаintiffs, allowed the motion of defendant Abernathy, to consolidate the case of Adelia Schwartz with the case of Dorothy Schwartz and Clarence Schwartz, each case seeking to recover from defendants, Bray and Abernathy, for injuries suffered on August 13,1960.
The consolidated cases involving the collision on August 13, 1960, came on for trial, the jury fоund for all defendants as to the claims of all three plaintiffs, judgments were entered on the verdicts, and this appeal followed.
Plaintiffs contend that the Circuit Court erred in ordering a severance in the case of plaintiff, Dorothy Schwartz, and a consolidation of the case of Adelia Schwartz, with that of Dorothy Schwartz. Numerous errors are charged during the course of the trial, and to the extent material to this decision will be hereinafter enumerated and discussed. Since the case of Clarence Schwartz is predicated solely on alleged loss of consortium, the disposition thereof is governed by the result reached in the case of Dorothy Schwartz.
"We shall first сonsider plaintiffs’ contention that the court erred in ordering the severance. Section 44 of the Civil Practice Act (Ill Rev Stat 1963, c 110 § 44) provides:
“(1) Subject to rules any plaintiff or plaintiffs may join any causes of action, whether legal or equitable or both, against any defendant or defendants; . . . .”
Section' 24 of the Civil Practice Act provides :
“Joinder of defendants.) (1) Any person may be made a defendant who, either jointly, severally or in the alternative, is alleged to have or claim an interest in the controversy, or in any part thereof, or in the transaction or series of transactions out of which the controversy arose, or whom it is necessary to make a party for the complete determination or settlemеnt of any question involved therein, or against whom a liability is asserted either jointly, severally or in the alternative arising out of the same transaction or series of transactions, regardless of the number of causes of action joined.
“(2) It is not necessary that each defendant be interested as to all the relief prayed for, or as to every cause of action included in any proceeding against him; but the court may make any order that may be just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in which he may have no interest.
“(3) If the plaintiff is in doubt as to the person from whom he is entitled to redress, he may join two or more defendants, and state his claim against them in the alternative against different defendants, to the intent that the question which, if any, of the defendants is liable, and to what extent, may he determined as between the parties.”
Section 51 of the Civil Practice Act provides:
“Consolidation and severance of actions: An action may he severed, and actions pending in the sаme court may he consolidated, as an aid to convenience, whenever it can he done without prejudice to a substantial right.”
In Johnson v. Moon, 3 Ill2d 561,
Defendants cite Sommers v. Korona, 54 Ill App2d 425,
The same issue has been considered by the appellate courts of New York, Michigan and Minnesota.
In the case of Gamble v. Fraleigh,
In the case of Pride v. Perras and Blank, 6 App Div 2d 842,
In the case of Abbatepaolo v. Blumberg and others, 7 App Div2d 847,
In the case of Watts v. Smith,
In the case of Schachter v. Richter (Sup Court of Minnesota)
In our opinion the provisions of the Civil Practice Act, as interpreted in Johnson v. Moon (supra) authorize the joinder of these defendants, since the complaint clearly asserts a liability arising out of the series of transactions alleged. Unless it can be determined with reasonable certainty to which occurrence plaintiff’s alleged injuries are attributable, the nature and severity of plаintiff’s injuries, and the extent to which each collision contributed thereto is a common question of fact.
Having determined this issue, we must consider whether the order of severance is an abuse of the discretion vested in the trial court. Our Supreme and Appellate Courts have consistently held that the disposition of many procedural issues rеsts within the sound discretion of the trial court. The exercise of sound discretion requires the availability of information sufficient to support the conclusion reached. In this case the order of severance was entered on September 28, 1962, without presenting to the court evidence readily available through appropriatе discovery procedures. If after deposition and interrogatory, the defendants were to move for severance on the ground that medical testimony could establish to a reasonable degree of medical certainty which injuries, if any, were' attributable to a particular occurrence, severance would not be improper. If, on the other hand, it appears that the cumulative effect of the acts of which plaintiff complains is a single indivisible injury, or that it is unlikely that it can be ascertained to a reasonable degree of medical certainty which occurrence caused the injuries, then severance is prejudicial to the plаintiff. The fact that it might be difficult, under these circumstances to establish the exact proportion of injury caused by each occurrence, is not sufficient reason to deprive plaintiff of the substantial right of a proper evaluation of her damages. To hold otherwise would require plaintiff to prosecute her claim in separate trials, in each of which the defense would be the uncertainty of the injuries resulting from each occurrence. In view of plaintiff, Dorothy Schwartz’s status as a passenger in a standing automobile, it is difficult to attribute the verdict in this case to any reason except that here suggested.
Under presently permissible procedures, litigants regularly file motions seeking summary judgment and other relief, supporting their motions with copious quotations from answers to interrogatories and evidence depositions. In the instant case, to require the presentation of sufficient information to enable the trial court to reach a sound result, imposes no undue burden on the litigants.
We are not imрressed with the contention that the trial of the negligence issues in two comparatively simple fact situations would be beyond the comprehension of a jury. Juries try and determine fact issues in extremely complicated cases involving third party complaints, cross claims, counterclaims, multiple plaintiffs and defendants, with a high degree оf perception. One of hundreds of examples is the case of Nelson v. Union Wire Rope Corporation, 39 Ill App2d 73,
Appellants suggest to the court that the evidence might warrant separate verdicts, apportioning the damages between the defendants in the first occurrence, and the defendant in the second. Section 50 of the Civil Practice Act (Ill Rev Stats 1963, c 110 §50) provides:
“More than one judgment or decree may be rendered in the same cause.”
In the light of the holding in Johnson v. Moon (supra) that the effect of the Civil Practice Act is to make applicable to actions at law, the practices which theretofore prevailed in equity, we аgree. After proper instruction, if the evidence warrants, such apportionment by the jury would not be objectionable.
We have carefully examined the medical testimony and conclude that justice requires that plaintiff, Dorothy Schwartz, be permitted to prosecute her claims against these defendants in a single trial. As to the cоnsolidation of the case of Adelia Schwartz, that is a matter for the discretion of the trial court, to be determined in the light of the views here expressed.
Since all of the remaining contentions of plaintiffs arise from the attempt to try plaintiffs’ case in separate trials, and are not likely to recur upon retrial, they will not be further considered. The judgment of the Circuit Court of St. Clair County is reversed and the cause remanded for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.