Hager v. McGlynn

• Decision Date: 02 December 1974
• Docket Number: No. KCD,KCD
• Parties: Howard HAGER and Mildred Marie Hager, Plaintiffs-Respondents, v. Barry G. McGLYNN, Defendant-Appellant. 26423.
• Court: Missouri Court of Appeals

Page 173

518 S.W.2d 173

Howard HAGER and Mildred Marie Hager, Plaintiffs-Respondents, v. Barry G. McGLYNN, Defendant-Appellant.

No. KCD 26423.

Missouri Court of Appeals, Kansas City District.

Dec. 2, 1974.

Motion for Rehearing and/or Transfer Denied Dec. 30, 1974.

Application to Transfer Denied Feb. 10, 1975.

Roy A. Larson Jr., Sprinkle, Carter, Larson, Myerson, & Fitzgerald, Kansas City, for defendant-appellant.

Lantz Welch, Kansas City, for plaintiffs-respondents.

Before PRITCHARD, P.J., and SWOFFORD, SOMERVILLE and TURNAGE, JJ.

TURNAGE, Judge.

This case presents for the first time in Missouri the question of permissive joinder by the plaintiff of two defendants who collided with the plaintiff at different times and places.

The plaintiff filed his petition in two counts. The first count was against defendant McGlynn and alleged a collision between the plaintiff and the defendant's automobiles on January 12, 1969, and alleged as a direct result thereof plaintiff was injured in his head, right eye and nose, neck, mid and lower back, left elbow, left knee and left ankle.

In his second count, plaintiff alleged he was riding a three-wheel motorcycle in the line of duty as a police officer in the City of Kansas City, when his cycle was struck from the rear on May 12, 1969, by defendant Tuttle. Plaintiff alleged as a result of this accident he was injured in his head, neck and right shoulder, abdomen, left rib, low back and lower extremities, and that he suffered an aggravation of his pre-existing injury to his left knee and leg.

The plaintiff prayed damages separately against each defendant.

Plaintiff's wife also filed her claim for damages resulting from the injuries allegedly suffered by her husband in separate counts against each defendant.

Each defendant moved for a separate trial prior to the commencement of trial and such motions were overruled.

The jury returned a verdict against defendant McGlynn in favor of plaintiff for $45,000.00 and for plaintiff's wife and against defendant McGlynn in the amount of $7,000.00. The jury also found in favor of the plaintiff and against defendant Tuttle in the amount of $20,000.00 and in favor of plaintiff's wife and awarded her the sum of $3,000.00.

Both defendants originally appealed, but after the notice of appeal was filed, defendant Tuttle dismissed his appeal. The only appeal remaining is that of defendant McGlynn from the judgment entered on the verdicts in favor of the plaintiff and his wife against that defendant.

Defendant McGlynn, in his first point, complains of the refusal of the trial court to grant him a separate trial because of the improper joinder of both defendants in one suit, although in separate counts, by the plaintiff. It must be remembered this complaint of error is founded on the action of the trial court prior to commencement of trial, and is considered here as of that time.

Rule 52.05 of the Rules of Civil Procedure, V.A.M.R., provides as follows:

'Permissive Joinder. All persons may be joined in one action as defendant 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, occurrences or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.'

This court had occasion to pass on the propriety of consolidating two lawsuits which originally were brought separately as a result of two separate and independent accidents in State ex rel. Allen v. Yeamen, 440 S.W.2d 138 (Mo.App.1969). In that case it was held the trial court was authorized to consolidate under Rule 66.01(b) two cases which had been brought following accidents which had occurred on October 20, 1962, and November 5, 1962. It was alleged the injuries received in the first accident were aggravated in the second. In that case, it was pointed out the consolidation rule only requires the separate actions to involve common questions of law and fact. The court held there the question of the extent of the injuries the plaintiff received resulting from the first accident and the extent of the injuries the plaintiff received as result of the second accident did involve a common question of fact.

The law has thus been settled in Missouri since Yeamen that two separate and independent accidents involving injury to the same parts of the body of the same plaintiff does involve a common question of fact. Here, plaintiff alleges some independent injuries in the second accident, but also alleges aggravation of the left knee injury received in the first accident. For this reason, the second requirement of Rule 52.05 requiring a common question of fact has been met in this case. The fact of some new and independent injuries in the second accident would not eliminate the common question presented by the aggravation. The only remaining question is whether on not the plaintiff's injuries in the present suit may be said to arise out of the same transaction, occurrence, or series of transactions or occurrences.

Before turning to that question, it should be noted that Rule 52.05 permits the joinder of multipe defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief. Here the plaintiff was asserting only several liability against the two defendants and made no attempt to allege any joint liability; nor did he allege any alternative theory of liability.

In considering this question, it is necessary to bear in mind the distinction between differing theories upon which joinder has been permitted. One theory, as set out in State ex rel. Blond v. Stubbs, 485 S.W.2d 152 (Mo.App.1972), is the liability of the original tort-feasor for medical malpractice resulting from treatment for the injuries originally received. This is not the theory in this case.

Another theory is that the plaintiff, through the joint, concurrent, several or independent torts of two or more defendants, sustained an injury said to be indivisible. This term is applied because of the pleaded or proven inability to apportion between or among the defendants the precise harm each inflicted upon the plaintiff. In this situation, the courts have broken down the common law barriers brought on by the definition of joint tort-feasors and have allowed the plaintiff to sue all defendants in one action and has imposed joint liability. Leading examples of this theory are Maddux v. Donaldson, 362 Mich. 425, 108 N.W.2d 33, 100 A.L.R.2d 1 (1961), and Sutterfield v. District Court, 165 Colo. 225, 438 P.2d 236 (Colo.S.Ct.1968). In Maddux the plaintiff's car was struck by two different cars within thirty seconds. In Sutterfield the two impacts were about nine months apart, but the pleading on which the case was decided was the allegation of a single or indivisible injury caused by the two separate accidents.

In this case, the third theory is presented of two independent accidents in which injuries alleged to have been received in the first are alleged to have been aggravated in the second.

The question for decision on the pleading in this case was decided by the Supreme Court of Ohio in Ryan v. Mackolin, 14 Ohio St.2d 213, 237 N.E.2d 377 (1968). In that case, the plaintiff was seated in an automobile on December 26, 1963, when it was struck from the rear by another vehicle and the plaintiff incurred injury to his back. On May 20, 1964, the same plaintiff was again rear-ended by a different defendant and injury to his back as a result of both impacts was alleged. The plaintiff joined both defendants in one action claiming judgment against the defendants either jointly or severally. The Ohio Court noted this was the first case in that state to be considered on the question of whether the two defendants could be joined by the plaintiff in a single suit. The court quoted the pertinent part of the Ohio Revised Code allowing joinder which is identical in language to Rule 52.05 in this state.

The Ohio Court stated at l.c. 237 N.E.2d 380:

'Thus, the code no longer contains any impediment to the joinder of causes of action of the kind asserted by the plaintiff in this case. The statutory changes reflect a constantly developing policy in the pursuit of simplified pleading and procedure. To save time and to relieve court congestion, parties are encouraged if not commanded, to litigate all their claims in one action, except to the extent that joinder of multifarious and complex issues would produce confussion and prejudice. Defendants and the courts are thus saved from vexation caused by multiple litigation.'

The court found the joinder was in accord with that policy, and held the successive rear-end collisions constituted a series of occurrendes causing the injuries for which the plaintiff seeks recompense. The court also held the causal contribution by each defendant to the plaintiff's compounded injury is a question of fact common to all the parties and may more effectively be determined in one trial.

The court then stated at l.c. 237 N.E.2d 382:

'The dimension of that statute is remedial not substantive, viz., to permit the adjudication in one action of the respective liability of each defendant which might otherwise, but not as fairly, be ascertainable in separate actions brought against them individually, and not to force either defendant to pay (and, indeed, to assist him in not paying) more than his theoretical share of the damages accuring out of a confused situation which his wrong has helped to create, or more than is shown to have been caused by his wrong. See annotation 100 A.L.R.2d 16, 32.'

The court then concluded under the facts in that...