273 N.W. 284 | Mich. | 1937
Plaintiffs owned two adjoining lots, on each of which was a frame flat located one block from defendant's forge plant. On the claim that drop hammers in the plant caused their buildings to vibrate and damaged them, and noxious fumes were emitted from the plant to their discomfort, plaintiffs commenced two actions against defendant in 1934. The declarations were identical as to allegations of nuisance and negligence and the suits differed only in the respect that in one the damages as to one building were claimed and in the other the damages as to the other building were claimed.
The action as to the southerly premises, on which plaintiffs lived, was tried and judgment rendered for defendant on March 19, 1936. No appeal was taken. Later, on leave of court, defendant filed an amended answer in the instant case, which involved the northerly lot, and pleaded the former judgment in bar on the ground that plaintiffs had split their cause of action.
On trial of this case, defendant moved for directed verdict, the cause was submitted to the jury, the jury disagreed, the court treated the motion to direct as a motion to dismiss, granted it and entered judgment for defendant.
Under 3 Comp. Laws, 1929, § 14535, the court may enter judgment although the jury disagrees. Central Electric Co. v.LeMoine,
Plaintiffs say defendant waived the defense of split cause of action by failing to move to dismiss within the time provided for pleading, as required in Court Rule No. 18 (1933). The rule, of course, provides the time to move as of right and does not restrict the power of the court to permit later amendment to pleadings on proper motion and showing. Court Rule No. 27, § 8 (1933).
Plaintiffs complain that defendant's tactics were unfair because if it had raised the point before trial of the other action plaintiffs could have consolidated the suits by amendment or otherwise. Until judgment in the case first tried, defendant could not have pleaded in bar nor prevailed in a motion to dismiss the present action. A party is not obliged to take an ineffective position, to his adversary's advantage, on penalty of waiver of rights. Because plaintiffs might have amended their pleadings on leave of court even after the testimony was taken, in the suit first tried, the point of split cause of action could not accrue until judgment therein, defendant was not sooner called upon to elect its course, and inaction could not work a waiver.
In denying that there was a splitting of the cause of action, plaintiffs strenuously urge that defendant's contention would result in injustice and loss to plaintiffs because the three-year statute of limitations (3 Comp. Laws, 1929, § 13976) could not fairly be applied if one house were over three years old and the other built within the period. We cannot follow the argument. It could have force only if plaintiffs were obliged to wait three years before bringing suit and thus be unable to recover damages to buildings erected within such period. No such obligation rested upon them. They were entitled, if they prevailed, to recover all damages to *607 both houses which had accrued within the period of limitation, no matter when the houses were built.
In this State the rule against splitting of causes of action is strictly enforced to prevent vexation and expense to a defendant. Brewster Loud Lumber Co. v. General Builders' SupplyCo.,
In the instant case the tort, although continuous, was single in its declared injurious effect. Plaintiffs do not charge that it may be divided as to time or otherwise so that a distinct and separate part of it may be traced to a specific injury to one building without a corresponding effect on the other. The tort is declared upon as a unit and the damage it caused was a unit. Consequently the two suits constituted a splitting of the cause of action. Beronio v. Railroad Co.,
Judgment affirmed.
NORTH, WIEST, BUSHNELL, SHARPE, POTTER, and CHANDLER, JJ., concurred. BUTZEL, J., did not sit. *608
