Adams v. Allstate Ins. Co.

Decision Date07 September 1961
Docket NumberNo. 35946,35946
Citation364 P.2d 804,58 Wn.2d 659
CourtWashington Supreme Court
PartiesEdra Marie ADAMS, an unmarried person, Appellant, v. ALLSTATE INSURANCE COMPANY, a corporation; Paul Frederick Tucker and Florence Elvina Tucker, his wife; Robert Gerald Tucker, a minor; William R. Pace and Jane Doe Pace, his wife; John N. Burkey and Jane Doe Burkey, his wife; A. J. Benesh and Jane Doe Benesh, his wife; and Owen Martin and Jane Doe Martin, his wife, Respondents.

Kennett, Evans & Stafford, Vaughn E. Evans, Seattle, for appellant.

Kahin, Carmody & Horswill, Seattle, Rosling, Williams, Lanza & Kastner, Seattle, for respondents.

FOSTER, Judge.

Plaintiff appeals in a personal injury action from an order dropping four defendants. Adams v. Allstate Ins. Co., 56 Wash.2d 834, 355 P.2d 838, decided only that the same order now here by appeal would not be reviewed by prohibition. We are met at the threshold with respondents' motion to dismiss on the ground that the order is not appealable.

Appellant made claim against the Tuckers for damage sustained in an automobile collision, which claim Tuckers turned over to the Allstate Insurance Company, their insurance carrier, which, for the purposes of acting upon the claim, employed the respondent physicians, William R. Pace, John N. Burkey, A. J. Benesh and Owen Martin, to examine appellant. The complaint alleged that the physicians, in the course of their examination, negligently and carelessly mishandled and mistreated the plaintiff, severely aggravating her prior injuries. Pursuant to Rule of Pleading, Practice and Procedure 21, RCW Vol. O, both the defendant insurance company and the three physicians moved to be dropped because the plaintiff's claims against them do not arise out of the same transaction or occurrence, and because the plaintiff's claims do not have common questions of law or fact. The insurance company added an additional ground to its motion that there was no allegation of negligence against it. The order, omitting the formal parts, is as follows:

'Ordered, adjudged and decreed that the defendants Allstate Insurance Company, William R. Pace and wife, John N. Burkey and wife, A. J. Benesh and wife, and Owen Martin and wife, be and the same are hereby dropped as defendants in the above entitled cause on the condition that upon the plaintiff filing a new action against any or all of the defendants who are being dropped from this action by this order, the said action may be consolidated for trial with this action after timely motion should be made and considered, so that the issue as to the damages caused by each of the defendants who are liable may be determined by the same factfinding tribunal.'

Before entry thereof, but after argument and the court's oral ruling, the appellant unsuccessfully sought prohibition (56 Wash.2d 834, 355 P.2d 838). Thereafter, but before the entry of such order, plaintiff asked leave to amend her complaint by alleging that the respondent, Allstate, was the agent of the Tuckers, that it employed the respondent physicians to examine plaintiff, that the combined negligence of all defendants produced the total resulting damage, and that she was in doubt as to the extent of the liability of each defendant and desired to avoid the peril of segregation.

The order dropping the insurance carrier and the physicians completely terminated the action against them. Nothing remained to be done. As to them the case was ended. While the dismissal was without prejudice to another action, it was, so far as the present case is concerned, final and complete. The fact that the action continued against the Tuckers is not germane. The motion to dismiss is denied.

Respondents assert that the complaint alleges two separate causes of action. Our procedural rules will be searched in vain for any survival of that Hydra-headed phrase 'cause of action.' All that is now required under Rule of Pleading, Practice and Procedure 8(a), RCW Vol. O, is that a pleading contain a short and plain statement of the claim showing the pleader entitled to relief and a demand for judgment. Nagler v. Admiral Corportion, 2 Cir., 248 F.2d 319; Dioguardi v. Durning, 2 Cir., 139 F.2d 774; Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 2 Cir., 133 F.2d 187; Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80; United States Circuit Judge Charles E. Clark, Two Decades of the Federal Civil Rules, 58 Columbia L.Rev. 435.

This is in sharp contrast to the superseded requirement of RCW 4.32.040 that the complaint state the facts constituting a cause of action. Volumes were written and myriads of cases decided without common agreement as to what constituted a cause of action.

The history of the joinder of claims and parties both under the Field code and the modern rules of civil procedure reveals a complete, not fragmentary, change. Code pleading cases are helpful only to show the completeness of the metamorphosis.

RCW 4.36.150, enacted by the first Territorial ritorial Legislature of 1854, Laws of 1854, p. 143, § 64, but now abrogated, 1 permitted the joinder of claims if all parties were similarly affected. Parties could only sue or defend with respect to joint claims or defenses. Under original Rule of Pleading, Practice and Procedure 2, 159 Wash. lvii, 2 the court adopted English Order No. 16, rule 1, 1 (1960) Annual Practice 301, 3 respecting the permissive joinder of plaintiffs. Such was the condition of the statutes and the rules of pleading, practice and procedure when Bank of California v. American Fruit Growers, 4 Wash.2d 186, 103 P.2d 27, reached here in 1940. It was there held that an action on a note secured by a chattel mortgage, the foreclosure of which was sought, could not be joined with an action against other parties for the conversion of the mortgaged chattels because, as the court said, all of the parties were not affected by all of the causes of action.

For reasons never explained, the court failed to adopt the complementary portion of English Order No. 16, rules Nos. 4 and 5, 1 (1960) Annual Practice 327, 331, 4 respecting the permissive joinder of defendants. 5 In the recast of Rule of Pleading, Practice and Procedure 20(a), RCW Vol. O, responsive to the suggestion of Dean Green, the second half of the English rule respecting permissive joinder of defendants was added so that with Rule of Pleading, Practice and Procedure 18(a), RCW Vol. O, there is now free joinder of both parties and claims.

In 1925, the New York Court of Appeals decided Ader v. Blau, 241 N.Y. 7, 148 N.E. 771, 41 A.L.R. 1216, with Judge Cardozo alone dissenting. The principal defendant was sued because of a fatal negligent injury. The physician who treated the injured boy was joined as a defendant because of his alleged malpractice which contributed to the boy's death. The New York statute provided for the joinder in one action of multiple claims arising out of the same transaction or series of transactions, whether jointly, severally or in the alternative, where if such persons brought separate actions any common questions of law or fact would arise. Cardozo's view was that the two causes of action were not inconsistent and that each of the defendants contributed to a single casualty, which was the subject of the action--the death of the child to the parents' pecuniary damage. Ader v. Blau, supra, precipitated a veritable avalanche of criticism. 6

Ten years later, the New York Judicial Council 7 recommended complete freedom of joinder of both claims and parties and declared that the matter was not a question of pleading but one of trial convenience only. However, judicial procedure in New York is not regulated by the judiciary but by the legislature. 8

The Judicial Council's recommendation was adopted by statute, and Tanbro Fabrics Corp. v. Beaunit Mills, Inc., 4 A.D.2d 519, 167 N.Y.S.2d 387, 390, judicially recognized the change. Three separate actions were consolidated. In the first, the seller, Beaunit, sued the buyer, Tanbro, for the purchase price of commodities sold and delivered. The buyer counterclaimed for breach of warranty. In the second action, the buyer sued the processor, Amity, to replevin a portion of the goods still in the processor's possession. The processor claimed a lien. In the third action, the buyer sued both the seller and the processor in the alternative because each claimed the other was at fault. The question arose on a motion for consolidation, but the New York test for consolidation and joinder of claims is identical. The court held that the actions should be consolidated because all involved common questions of law and fact. Ader v. Blau, supra, was completely repudiated.

The court's survey of the development of the law relating to joinder is comprehensive indeed. It summarized the report of the New York Judicial Council as follows:

'* * * In making the recommendation, the Judicial Council referred to the Ader case (supra) and the fact that the court had regarded the area of joinder of parties limited by the pleading restrictions of section 258. It added, 'Complete freedom should be allowed in the joinder of causes of action as in the joinder of parties, and it is submitted that the correct approach to the joinder both of parties and of causes of action is the English one: May the matters conveniently be tried together? The problem is to combine as many matters as possible to avoid multiplicity and at the same time not unduly complicate the litigation for the jury."

The court stated:

'* * * The Court of Appeals, in Great Northern Tel. Co. v. Yokohama Specie Bank, 297 N.Y. 135, 76 N.E.2d 117, discussed the question frontally. It held that the Ader case (supra) was a result of the pleading limitation contained in the old, and now repealed, section 258. The court went on to point out that section 211, as it then was, permitting joinder of parties, was designed to adopt the English practice with regard to...

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