Bajorek v. Kurtz

• Decision Date: 09 December 1952
• Docket Number: No. 39,39
• Parties: BAJOREK et al. v. KURTZ et al.
• Court: Michigan Supreme Court

Page 727

55 N.W.2d 727

335 Mich. 58

BAJOREK et al. v. KURTZ et al.

No. 39.

Supreme Court of Michigan.

Dec. 9, 1952.

Kasoff & Young, Detroit, for defendants and appellants. Norman W. Stern, Detroit, of counsel.

Stanley F. Kaczor, Detroit, for plaintiffs and appellees.

Before the Entire Bench.

CARR, Justice.

The question at issue in this case is whether the plaintiffs are entitled to join in an action for damages for injuries claimed to have been sustained by their respective properties because of alleged wrongful conduct on the part of the defendants. The declaration, which was filed August 23, 1949, alleges that the named plaintiffs are the owners of record, or purchasers on land contract, of lots in certain subdivisions in the city of Detroit, and that they have used their respective lots for residential purposes for a number of years past. The pleading further alleges that defendant Kurtz is engaged in the manufacture of cement and concrete products at 5740 Martin street in said city, and that in connection with the conduct of said business both of the defendants operate heavy trucks in delivering cement and other materials; that said operation causes loud and rasping noises, vibrations of the earth, and cement dust, all of which interfere with the use and enjoyment by the different plaintiffs of their respective residences. It is further asserted that the vibrations have caused injuries to the buildings of the plaintiffs. Damages sustained by the different plaintiffs as owners of the lots in question and residents of the community are asked on the theory that the conduct of the defentants in the use of an alley leading to the place of business of defendant Kurtz is unreasonable, unlawful, and constitutes a nuisance as to said plaintiffs and their properties.

On demand a bill of particulars was filed, setting forth the items of damage claimed to have been sustained by each of the plaintiffs, and waiving in each instance the recovery of any amount in excess of $1,000 On December 8, 1949, defendants filed an answer to the declaration denying liability to the plaintiffs because of the operation of their trucks, and further denying that their conduct has been unreasonable or unlawful. Thereafter and under date of April 23, 1951, defendants filed a motion to dismiss the declaration on the ground of misjoinder of parties plaintiff and of causes of action, asserting that each of said plaintiffs had 'a separate and distinct claim as set forth in the bill of particulars and declaration heretofore filed.' Following a hearing the motion to dismiss was denied, and defendants on leave granted have appealed from the order entered. It is the claim of the appellees that they are entitled to prosecute in one action their individual claims for damages against defendants by virtue of the provisions of C.L. 1948, § 608.1, Stat.Ann. § 27.591. Said section reads as follows:

'The plaintiff may join in 1 action, at law or in equity, as many causes of action as he may have against the defendant, but legal and equitable causes of action shall not be joined; but when there is more than 1 plaintiff, the causes of action joined must be joint, and if there be more than 1 defendant, the liability must be one asserted against all of the material defendants, or sufficient grounds must appear for uniting the causes of action in order to promote the convenient administration of justice, or when several suits shall be commenced against joint and several debtors, in the same court, the plaintiff may, in any stage of the proceedings, consolidate them into 1 action. If it appear that any such causes of action cannot be conveniently disposed of together, the court may order separate trials, or whenever several suits shall be pending in the same court, by the same plaintiff against the same defendant, for causes of action which may be joined, the court in which the same shall be prosecuted may, in its discretion, order the several suits to be consolidated into 1 action.'

The interpretation and application of the statute have heretofore been considered by this Court in numerous cases, some of which are cited by counsel in their briefs, In Gilmer v. Miller, 319 Mich. 136, 29 N.W. 2d 264, it was held, under the facts there involved, that there was no misjoinder of parties plaintiff. The action was brought to recover moneys that the plaintiffs claimed to have paid to the defendant, as the agent of each and all of them, under a contract. It was asserted that defendant had breached the duty that he owed plaintiffs. Receipt of the payments sought to be recovered was admitted by the answer. The situation was such as to render it proper to determine in one action the rights of the respective parties. It was further pointed out, though not expressly determined, that requiring plaintiffs to prosecute separate actions might result in compelling one of them to split her cause of action.

In Goodrich v. Waller, 314 Mich. 456, 22 N.W.2d 862, also cited by appellees, suit was brought in equity by the plaintiffs to set aside assignments given by them individually to defendant, of their interests in a certain estate. In rejecting defendant's contention that plaintiffs' causes of action were several and could not be joined, it was pointed out that the plaintiffs had like interests in the estate, that the representations claimed to have been made to them by defendant by way of inducement to the execution of the assignments were identical, and that the plaintiffs sought the same relief. The conclusion was reached that the causes of action might properly be joined under the statute to promote the convenient administration of justice.

Of like import is the decision in Gardella v. Babigian, 263 Mich. 514, 248 N.W. 885. There the plaintiffs, who had participated in a joint venture involving the purchase of real estate, brought action to recover damages from the defendants on the ground of fraud consisting in misrepresentations as to the situs of the property. It was held that the facts alleged in the declaration were of such character as to permit plaintiffs to join in an action against the parties claimed to have been guilty of the fraud. It was, however, held that the joinder of a defendant, not claimed to have participated in any way in the false representations, in a count seeking recovery on the theory of fraud was improper. Latimer v. Piper, 261 Mich. 123, 246 N.W. 65, 68, was a suit in equity for an accounting and for rescission by parties held to have been engaged in a joint venture. In rejecting the claim that there was misjoinder of parties plaintiff, it was said:

'Each one of the plaintiffs is entitled to the same relief in equity. The representations were identical, whether made to plaintiffs jointly or severally. When the interests in the subject-matter and the issues are the same,...