Hutchison v. Ohio Valley Electric Ry. Co.

• Decision Date: 25 February 1919
• Parties: HUTCHISON v. OHIO VALLEY ELECTRIC RY. CO.
• Court: Kentucky Court of Appeals

209 S.W. 355

183 Ky. 396

HUTCHISON v. OHIO VALLEY ELECTRIC RY. CO.

Court of Appeals of Kentucky.

February 25, 1919

Appeal from Circuit Court, Boyd County.

Action by Edward Hutchison against the Ohio Valley Electric Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

John S Fullerton, of Ashland, for appellant.

Hager &amp Stewart, of Ashland, for appellee.

SETTLE J.

The appellant Edward Hutchison, instituted in the Boyd circuit court this action against the appellee, Ohio Valley Electric Railway Company, and William Hauk, seeking the recovery of damages for injuries to his person caused, as averred by their joint and concurrent negligence; it being alleged in the petition that the railway company so negligently operated one of its street cars, and Hauk so negligently his jitney bus or automobile, in which appellant was at the time a passenger for hire, as to cause a collision between them on a street of the city of Ashland and thereby inflict upon appellant's body the injuries complained of. The defendants answered separately. The answer of the railway company denied the negligence attributed to it by the petition and alleged that appellant's injuries were caused by the negligence of Hauk alone. That of Hauk also denied the negligence attributed to him by the petition, and alleged that appellant's injuries were caused solely by the negligence of the railway company. All affirmative matter of each answer was controverted by reply, thereby completing the issues.

For some reason not appearing in the record, the railway company was disinclined to have the case proceed to a trial against the defendants jointly. So, when the case was called for that purpose, it requested of the court a separate trial of the issues made by the pleadings between it and appellant, and entered of record a motion to that effect, to which appellant objected. But the objection was overruled, and the motion of the railway company for a separate trial sustained; to both of which rulings appellant at the time excepted. The separate trial thereupon followed, resulting in a verdict for the railway company as directed by a peremptory instruction from the court given at the latter's request at the close of appellant's evidence, to which he objected and excepted. There was no trial of the action as to Hauk, the other defendant; at least, it does not appear that there was from the record. We therefore assume that the case was continued as to Hauk at that term of the court. Appellant filed motion and grounds for a new trial, but the motion was overruled, to which an exception was also taken; and, from the judgment entered upon the verdict and orders manifesting the several rulings excepted to, he prayed and was granted an appeal.

Appellant's chief complaint in this court is that the action of the circuit court in granting appellee a separate trial is reversible error. The well-known rule of the common law that joint tort-feasors may be sued jointly or severally has not been changed by our Civil Code. On the contrary, it recognizes and has adopted the rule. Civil Code, § 83; Pickerill v. City of Louisville, 125 Ky. 213, 100 S.W. 873, 30 Ky. Law Rep 1239; Cum. T. & T. Co. v. Ware, 115 Ky. 581, subsecs. 1-7, 74 S.W. 289, 24 Ky. Law Rep. 2519. So where the injury to the person or property is, as here alleged, the result of the concurring negligence of two or more parties, they may be sued jointly or severally. Nor does the fact that different degrees of care may be owing to the plaintiff by the different defendants interfere with the former's right to sue them jointly or severally as he may elect. But we have never before been called on to decide, upon such a state of case as is here presented, whether any one or more of several defendants jointly sued for the same tort can rightfully demand or be granted a separate trial or trials. If any one of several defendants can do so, it would seem to be equally the right of each of the others; and, if there should happen to be as many as six or a dozen such defendants, the separate trials, to say nothing of the time unnecessarily consumed, would be attended with extraordinary expense to the commonwealth and unsuccessful "litigants," especially the plaintiff, if defeat should fall to his lot on any considerable number of the trials.

It has long been the policy of this state, and the practice of its courts as well, to prevent waste of time and unnecessary expense in disposing of litigation by trying, when practicable, several cases together. This is often done where the several causes are of the same nature, or where several actions are brought by one plaintiff against different defendants, or by different plaintiffs against the same or other defendants, and the issues are the same in each case.

It has also been held that this practice is permissible even when the defendants employ different counsel. The ground upon which this practice is bottomed is that it prevents unnecessary delay and expense. The order requiring such hearing of several causes together does not have the effect of merging the several actions into one. Its only effect is that the suits be tried together. Each case retains its distinctive characteristics, and the judgment in each case is several. And if the judgment in either of the cases is erroneous, such error is fatal only to that judgment and does not affect the others. Anderson v. Sutton, 2 Duv. 480; Paducah Traction v. Walker's Adm'r, 169 Ky. 721, 185 S.W. 119; Reid v. Nichols, 166 Ky. 424, 179 S.W. 440. In each of the cases, supra, it was held that the question whether such cases as those of the character last referred to should be tried together is a matter in the discretion of the trial court, and such discretion will not be interfered with on appeal unless it was clearly abused.

If the practice of trying together cases of different parties because of their involving the same or like issues is permissible, a fortiori should it be followed in a case like the one before us, the only parties to which are the plaintiff who was wronged and the two defendants who jointly committed the wrong; the negligence of the one concurring with that of the other in inflicting it. As the law gave the former the right to sue the two latter in one and the same action, his legal right to have a trial against the two at the same time would seem necessarily to follow.

We have found but one case that can be said to afford even colorable support to the action of the circuit court in according appellee a separate trial, viz., Young v. Adams, 14 B. Mon....