Ferron v. Intermountain Transp. Co.

• Decision Date: 03 December 1943
• Docket Number: 8331.
• Citation: 143 P.2d 893,115 Mont. 388
• Parties: FERRON v. INTERMOUNTAIN TRANSP. CO. et al.
• Court: Montana Supreme Court

143 P.2d 893

115 Mont. 388

FERRON v. INTERMOUNTAIN TRANSP. CO. et al.

No. 8331.

Supreme Court of Montana

December 3, 1943

Rehearing Denied Dec. 21, 1943.

Appeal from District Court, Eighth District, Cascade County; R. M Hattersley, Presiding Judge.

Action by Argie Ferron, an infant, by Mary McAdam Ferron, guardian of his person and estate, against Intermountain Transportation Company and another to recover damages for the death of the infant's mother in a collision between an automobile which the mother was driving and named defendant's bus. From an order granting plaintiff a new trial after jury returned a verdict for defendants defendants appeal.

Affirmed.

R. H Glover, of Butte, and S. B. Chase, Jr. and John D. Stephenson, both of Great Falls, for appellants.

Selden S. Frisbee and Coburn & Werner, all of Cut Bank, and Hall & Alexander, of Great Falls, for respondent.

MORRIS Justice.

This is an appeal from an order granting a new trial.

September 18, 1940, an Intermountain Transportation Company bus on a run from Butte to Great Falls on Highway No. 91, with Morris Hoyle driving, stopped about a mile before reaching the town of Cascade for the purpose of investigating a car in the ditch at the side of the highway and to render such assistance as might be needed. It was about five o'clock in the morning, and snowing slightly. While the bus was standing on the right side of the highway, taking up most of the road on that side of the white center line, a car, driven by Argie Ferron with the owner of the car, Glen D. Shelton, as a passenger, also driving from Butte to Great Falls, crashed into the rear of the bus. Ferron was killed and Shelton subsequently died after being taken to a Great Falls hospital.

Mary McAdam Ferron, guardian of the person and estate of Argie Ferron, an infant, the only child and heir at law of Argie Ferron, deceased, commenced an action against the bus company and Hoyle to recover $40,000 for and on behalf of the minor child. About the same time James Shelton, father of Glen D. Shelton, deceased, was appointed administrator of Glen D. Shelton's estate, and commenced an action on behalf of the heirs at law of such deceased against the bus company for $27,500, for and on account of the death of Glen D. Shelton. This action was against the bus company alone. Selden S. Frisbee and Coburn and Werner of Cut Bank, and Hall and Alexander of Great Falls were counsel for the plaintiff Mary McAdam Ferron, guardian, and the law firm of Church and Jardine was counsel for the plaintiff Shelton.

When the two cases came on for trial the district court granted a motion of the defendants to consolidate the two actions. Counsel for both plaintiffs objected to the consolidation on numerous grounds, which were overruled. Several days were consumed in the trial of the actions and settlement of the instructions. When the testimony and other evidence on behalf of the plaintiffs was all in, and the plaintiffs rested, the defendants by separate motions in each case moved for nonsuit and dismissal of the actions. After arguments the motions were denied. When the evidence was all in and both parties had rested, defendants moved for directed verdicts which were also denied. Both cases then went to the jury under instructions, and a verdict was returned in each case in favor of the defendants.

In due course both plaintiffs moved for a new trial. Thereafter on November 29, 1941, defendants filed an affidavit of disqualification of the trial judge, and the Hon. R. M. Hattersley, judge of the Ninth Judicial District, was designated to preside in the actions, assumed jurisdiction, and thereafter on December 6, 1941, arguments on the motions for new trials were had. January 2, 1943, Judge Hattersley made and entered an order in each case granting a new trial. From such orders the defendants appeal. The sole error assigned in each case is on the court's granting plaintiffs' motion for the new trials.

The evidence on the merits of the actions is incorporated in the transcripts before us, but no consideration will be given to that phase of the controversy as the merits of the actions are not involved in the questions before us. The sole matter to be determined is as to whether or not the presiding judge committed error in granting the motions for new trials. We are satisfied that he did not. This conclusion is based upon our construction of section 9820, Revised Codes, which provides: "Whenever two or more actions are pending at one time between the same parties and in the same court, upon causes of action which might have been joined, the court may order the actions to be consolidated." The two actions before us are not "between the same parties," and they are not, in our opinion, such "causes of action" as are referred to in section 9130, Revised Codes. In the Ferron case Hoyle, the bus driver, was made a joint defendant along with the bus company. In the Shelton case the action was against the bus company alone. Counsel for neither plaintiff was in any way interested in the action of the other plaintiff.

We know of no statute or rule of law in this state that may be applied to compel two plaintiffs represented by separate counsel to join together in litigation over their separate objections promptly made. We will go further and say that it is our view that under our laws counsel for no one may be hampered nor in any way restricted or limited in the preparation of his case, the selection of a jury, submission of evidence, objection to evidence offered by his adversary, settlement of instructions, nor as to any other matter wherein he is entitled to use his own judgment in protecting the interests of his client. In the Shelton case the suit was brought on behalf of "heirs at law" of the deceased, the record showing that such heirs were his father and mother. In the Ferron case the suit is in behalf of a minor child. Transcripts were furnished in each case and a good portion of each transcript has to do with the particular case and much of the evidence is immaterial as to the other. Counsel for Ferron made numerous exceptions to the admission of testimony of witnesses and the admission of numerous exhibits that were not objected to by counsel for Shelton, and counsel for Shelton expressly took an opposite view as to the adoption of certain instructions which were objected to by counsel for Ferron. When counsel for two separate plaintiffs disagree, as here, it strengthens the cause of their common adversary. We do not think our statute intends that counsel for one plaintiff may be forced into co-operation with counsel for another plaintiff over his objection.

When it came to the selection of the jury, each plaintiff was allowed four peremptory challenges, and the defendants eight. Both plaintiffs objected to the defendants being allowed more than four such challenges, but the objections were overruled and defendants were allowed eight. We think this violated the provisions of section 9343, Revised Codes, and was prejudicial error. It is our view that when cases are properly ordered consolidated for trial they become a single action so far as selecting a jury is concerned. Each of the parties plaintiff and the parties defendant, irrespective of the number making up such parties, were entitled, collectively, to four peremptory challenges, and no more. See Mullery v. Great Northern R. Co., 50 Mont. 408, 148 P. 323.

We are not impressed with the distinction made by defendants as to the "three classes" of consolidation at common law. Such distinctions, it appears to us, have largely arisen from the fact that many states have no statutory provision governing consolidation or for other similar reasons, and many states that have such statutes contain provisions that are materially different from ours.

Our investigation of the numerous authorities, both text-writers and court decisions, convinces us that there are two distinct rules relative to consolidation: One stemming from such statutes as our section 9820, Revised Codes, which specifically mentions certain essential details, such as the provision relative to the parties, and the other from the federal statutes which is general in nature, and, in effect, leaves the question of consolidation entirely to the discretion of the trial court. From these separate sources of authority relative to consolidation all rules on consolidation appear to arise. The conflict is referred to in Yardley v. Rutland R. Co., 103 Vt. 182, 153 A. 195, later adverted to.

"There is no provision under common-law procedure for joining or combining two suits" (Lawing v. Schaufflu, 162 Tenn. 79, 34 S.W.2d 1055, 85 A.L.R. 633), and section 9820, Revised Codes, supra, is the only express provision in our Codes on the subject. Other provisions of our Codes however indicate the correct procedure by their general terms. Section 9130, Revised Codes, specifies what causes of action a plaintiff may join in one complaint, but says nothing about consolidation of actions. Section 9083 provides that: "Of the parties to the action, those who are united in interest may be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, ***." While this section does not apply to actions such as are referred to in section 9820, it strongly indicates that independence of action to which we think all litigants are entitled.

Section 9820, Revised Codes, has not heretofore been construed by this court relative to the precise question here involved but in the case of Handley v. Sprinkle, 31 Mont. 57, 63, 77 P. 296, 297, 2 Ann.Cas. 531, it was said in reference to section 1894 of the Code of Civil Procedure of 1895, now ...