Carr v. Higdon

• Decision Date: 14 October 1983
• Citation: 665 S.W.2d 382
• Parties: Margaret O. CARR, Plaintiff-Appellee, v. Carl R. HIGDON, Defendant, Elmer Wright Davis, Defendant, Cross-Plaintiff, W.A. McRae, Defendant, Cross-Defendant Appellant. 665 S.W.2d 382
• Court: Tennessee Court of Appeals

Page 382

665 S.W.2d 382

Margaret O. CARR, Plaintiff-Appellee, v. Carl R. HIGDON, Defendant Elmer Wright Davis, Defendant, Cross-Plaintiff W.A. McRae, Defendant, Cross-Defendant Appellant.

665 S.W.2d 382

Court of Appeals of Tennessee Eastern Section.

Oct. 14, 1983.

Application for Permission to Appeal

Denied by Supreme

Court

Dec. 19, 1983.

Fred G. Musick, Knoxville, for appellant.

Archie R. Carpenter, Knoxville, for plaintiff-appellee.

OPINION

GODDARD, Judge.

This interlocutory appeal questions the propriety of the Trial Court's overruling motions for severance filed by the Defendants McRae and Davis.

The complaint alleges the following relative to the facts giving rise to the Plaintiff's causes of action:

2. On March 31, 1982, plaintiff was traveling east on Atlantic Avenue in Knoxville, Knox County, Tennessee and had stopped at the intersection of Atlantic Avenue and Broadway. Defendant Higdon was traveling in the same direction and while plaintiff was stopped at the stop sign, defendant negligently, carelessly, and recklessly drove the front of his automobile into the rear of the vehicle being operated by the plaintiff.

3. On April 19, 1982, plaintiff was traveling south on Clinton Highway in Knoxville, Tennessee, when traffic in front of her slowed, requiring her to bring her vehicle to a stop. Defendants Davis and McRae were traveling south on Clinton Highway in the same lane as the plaintiff, and while plaintiff's vehicle was stopped the vehicle driven by defendant Davis struck the rear of the plaintiff's vehicle. Plaintiff avers that the Davis vehicle was then struck in the rear by the vehicle driven by defendant McRae, further driving the Davis vehicle into the rear of the plaintiff's vehicle. In the alternative, plaintiff avers that if the McRae vehicle did not first strike the Davis vehicle as alleged, then defendant Davis negligently struck the plaintiff's vehicle in the rear and McRae's vehicle struck Davis' vehicle driving it into plaintiff's vehicle a second time. Plaintiff thus avers that both defendants Davis and McRae negligently, carelessly, and recklessly operated their vehicles resulting in this collision.

As to her damages the complaint alleges the following:

7. In the March 31, 1982 collision the plaintiff suffered injuries to her neck back, and entire body, causing her pain and anguish and requiring medical attention with the resulting expenses. Although the pain and discomfort of those injuries were lessening somewhat by the time of the second collision, they had not completely resolved. The April 19, 1982 collision resulted in additional injuries to plaintiff's back, neck and entire body and aggravated her previous condition thus causing her great pain, mental anguish and disability. Both incidents have required her to spend great sums of money for medical attention and have on occasion resulted in her being unable to work or follow her usual vocation. She believes that her injuries are permanent and will affect her ability to earn a living and enjoy life for as long as she lives.

8. These injuries were sustained in the collision of March 31, 1982, and were further exasperated by the collision of April 19, 1982, and due to the nature and extent of the injury, the injuries are inseparable and plaintiff avers that the defendants are jointly and severally liable to her for damages sustained.

9. As a result of the two collisions, plaintiff's vehicle was damaged and depreciated, for which property damage she sues.

Although it will be noted that Section 8 charges joint and several liability, in oral argument counsel for the Plaintiff did not insist that Defendant Higdon is jointly liable with the Defendants McRae and Davis.

Rule 20.01 of the Tennessee Rules of Civil Procedure states the following:

All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action.

In cases such as this involving separate accidents, the critical point lies in defining the phrase "arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action."

Of the various reported decisions facing this issue no predominant trend emerges, although it seems that a majority favor allowing joinder. In Hager v. McGlynn, 518 S.W.2d 173 (Mo.App.1974), the Court allowed joinder of two separate accidents which involved injuries to the same parts of the same plaintiff. The court recognized that its permissive joinder statute was identical to Rule 20 of the Federal Rules (upon which Rule 20.01 of the Tennessee Rules of Civil Procedure is also based) and found that when the injuries are said to be indivisible or aggravated by the other accident joinder is permissible. The Hager court justified its position in the face of conflicting earlier decisions by finding that the injuries were specifically laid out, that the rules were to be liberally construed, and that it was better to have all the parties before the court to avoid duplicity.

Likewise, in Ryan v. Mackolin, 14 Ohio St.2d 213, 237 N.E.2d 377 (1968), the Ohio Supreme Court allowed the joinder of actions against drivers for back injuries received in two separate collisions (December 26, 1963 and May 20, 1964) on a statute substantially similar to Rule 20.01 of the Tennessee Rules of Civil Procedure. The Court found that the situation met the Rule's requirements of "a series of occurrences" and "a common question of fact" and granted joinder because it felt one trier of fact could best handle the action.

In Sutterfield v. District Court, 165 Colo. 225, 438 P.2d 236 (1968), the Colorado Supreme Court reversed the decision of the lower court to sever the actions against two drivers in separate accidents. The Court stated that under RCP Colo. 20(a) (which is essentially the same as T.R.C.P. 20.01) these actions could be tried together under permissive joinder because the injury was the common occurrence and therefore the requirement of the statute was met. The Court acknowledged that the District Court had broad discretion in severing the actions but reversed because no proper findings to support it were found. The Court also, prior to approving the language of W. Barron and A. Holtzoff, Federal Practice and Procedure Sec. 553 (1961), which suggests a broad reading of the Rule is desirable, stated the following, which we find altogether persuasive:

The situation of two juries faced with the task of apportioning liability for a single injury could very well result in the plaintiffs' receiving aggregate verdicts for much less than the admitted amount of permanent injuries, or,...