Kanoy v. Hinshaw, 450

• Decision Date: 10 April 1968
• Docket Number: No. 450,450
• Citation: 160 S.E.2d 296,273 N.C. 418
• Court: North Carolina Supreme Court
• Parties: Frances D. KANOY v. Emory Ray HINSHAW and Security Mills of Greensboro, Inc. Connie Reid KANOY, by his Next Friend, Francis V. Kanoy, v. Emory Ray HINSHAW and Security Mills of Greensboro, Inc.

Page 296

160 S.E.2d 296

273 N.C. 418

Frances D. KANOY v. Emory Ray HINSHAW and Security Mills of Greensboro, Inc.

Connie Reid KANOY, by his Next Friend, Francis V. Kanoy, v. Emory Ray HINSHAW and Security Mills of Greensboro, Inc.

No. 450.

Supreme Court of North Carolina.

April 10, 1968.

W. H. Steed, Thomasville, and Walser, Brinkley, Walser & McGirt, Lexington, for plaintiffs.

Sapp & Sapp and Rollins & Rollins, Greensboro, for defendants.

BRANCH, Justice.

Plaintiffs assign as error the trial court's action in consolidating the two cases for trial. This assignment of error is based on an exception duly taken. Fleming v. Holleman, 190 N.C. 449, 130 S.E. 171.

Appellants rely on the language contained in the case of Dixon v. Brockwell, 227 N.C. 567, 42 S.E.2d 680, where Winborne, J., (later C.J.) stated:

'It is appropriate to say that consideration of this appeal leads to the conclusion that it would be better to try the actions brought by these plaintiffs, passengers in the Frank N. Martin car, separately from the action brought by Frank N. Martin. This is so even though these plaintiffs make no allegation of negligence against Frank N. Martin. They elect to allege a cause of action for actionable negligence only against the defendant, and may recover only if they make good on these allegagations, even if Frank N. Martin were negligent also, and that his negligence were a proximate cause of, and concurred in bringing about the collision in question. Hence the issue in their actions is one of negligence of defendant, and proximate cause, and concurring negligence of Frank N. Martin has no place in the trial of their causes. While, on the other hand, in the Frank N. Martin case, there are issues of negligence and contributory negligence which require appropriate instructions.'

The trial court possesses the power to order consolidation of actions for trial when the actions involve the same parties and the same subject matter, if no prejudice or harmful complications will result therefrom. This power is vested in the trial judge so as to avoid multiplicity of suits, unnecessary costs, delays, and to afford protection from oppression and abuse. To sustain an exception to the court's discretionary consolidation of the actions, injury or prejudice to the appealing party arising from such consolidation must be shown. Peeples v. Seaboard Air Line R.R., 228 N.C. 590, 46 S.E.2d 649.

In the case of Davis v. Jessup, 257 N.C. 215, 125 S.E.2d 440, Denny, C.J., speaking for the Court, stated:

'The plaintiffs' first assignment of error is to the consolidation of these actions for trial. The trial court possesses the discretionary power in proper cases to order the consolidation of actions for trial. McIntosh, North Carolina Practice and Procedure, 2nd Ed., Vol. I, Section 1342; Peeples v. Seaboard Air Line R.R. Co., 228 N.C. 590, 46 S.E.2d 649, and cited cases. Moreover, when the consolidation of actions for the purpose of trial is assigned as error, the appellant must show injury or prejudice arising therefrom. Here, both actions grew out of the same accident, and in essence the complaints are identical, and so are the answers. The same defenses are interposed, the plaintiffs used the same witnesses, and the evidence was the same except on the question of damages. Both actions were against the same defendant, and both plaintiffs were represented by the same attorneys. Furthermore, it has not been shown on this record that the appellants were injured or prejudiced by the order of consolidation. This assignment of error is overruled.'

It should be noted that the Davis v. Jessup case differs from the instant case in that the issue of contributory negligence was submitted as to both plaintiffs and there was no counterclaim against either of the plaintiffs.

Robinson v. Standard Transportation Co., 214 N.C. 489, 199 S.E. 725, is a case in which the driver of an automobile and four of his guest passengers brought separate actions against the same defendants, in which each plaintiff sought recovery for personal injuries, and one plaintiff, in addition, sought recovery for property damage. The original record shows that an issue of contributory negligence was submitted as to one plaintiff only. The Court, holding that there was no error in the consolidation of these cases for trial, stated:

'(1) The exception to consolidation of the cases for the purpose of trial is without merit. In this State the power of the trial court to consolidate cases for convenience of trial is not confined to cases between the same parties, but extends to cases by the same plaintiff against several defendants and cases by different plaintiffs against the same defendant, where the causes of action grow out of the same transaction and the defense is the same. Abbitt v. Gregory, 201 N.C. 577, 593, 594, 160 S.E. 896; McIntosh, Practice and Procedure, 536, 539. The liability of the defendants, if any, to the several plaintiffs in this action grew out of the same alleged negligent acts and the defense is the same. There is no apparent prejudice to the defendants in the consolidation of these actions which might interfere with the discretion of the court in making the order.'

In analyzing Robinson v. Standard Transportation Co., supra, we conclude that the court reasoned that 'the defenses were the same' in the sense that no confusion would result in the trial from the consolidation since defendants relied on the same negligent acts of the plaintiff driver as their defense in their plea of contributory negligence and in their contention that the sole negligence of the same driver barred recovery by the other plaintiffs.

An examination of the case law of other jurisdictions indicates a strong trend towards approval of consolidation in actions for injuries whenever possible, on the premise that, generally, the applicable rules of law are not complicated and may be explained to the modern jury so that it may understand and apply the legal rules to the factual situation. See 68 A.L.R.2d 1372, for an exhaustive note on Consolidation--Actions for Injuries.

In this connection we observe it is the rule in this jurisdiction that when cases are consolidated for trial, although it becomes necessary to make only one record, the cases remain separate suits and retain their distinctiveness throughout the trial and appellate proceedings. Pack v. Newman, 232 N.C. 397, 61 S.E.2d 90; Horton v. Perry, 229 N.C. 319, 49 S.E.2d 734.

Here, the court submitted separate issues as to both cases and the written issues were in the possession of the jury during its deliberations. Any contention that confusion resulted from consolidation of the actions because of the submission of the defense of contributory negligence and the inclusion of a counterclaim against the plaintiff driver is further dispelled by the fact that the jury considered only the first and fourth issues in the Frances D. Kanoy case and only the first issue in Connie Reid Kanoy case. The actions grew out of the same accident, the same evidence was related by the same witnesses (except as to damages), both defendants relied on the same acts of negligence of the plaintiff Frances D. Kanoy to sustain their defense of contributory negligence and their defense that the sole negligence of Frances D. Kanoy caused the injuries received by the passenger Connie Reid Kanoy. Plaintiffs brought forward no assignment of error as to the admission or exclusion of evidence or as to any other specific ruling of the court which they contended was caused by consolidation of the actions for trial.

The record in the instant case does not reveal apparent prejudice to either plaintiff which justifies interference with the court's discretionary order of consolidation. We do wish to stress, however, that in considering consolidation of actions for trial, the trial court should carefully weigh the possibilities of confusion, misunderstanding or prejudice to the parties which might arise from such consolidation.

Plaintiffs assign as error comments of the trial judge made in the presence of the jury as being prejudicial in expressing an opinion as to the evidence.

The court, in explanation of his ruling on the admissibility of evidence, stated in the presence of the jury:

'The position of the body and truck has nothing to do with the wreck; in other words, you are alleging a faulty truck but it has nothing to do with the cause of the wreck, what happened after is another matter, what caused the wreck--whether bolted on solid or not; there is no evidence that had anything to do with the wreck.

How the body is constructed has nothing to do with whether it caused the wreck or didn't.

If the feed came off or tilted sideways and caused him to lose control of the truck, it would be different; there is no evidence the body had anything to do with causing the collision, how it was attached to the truck or what--that's not material; the fact that it hit the car if it did is material but how it is bolted on has nothing to do with whether the wreck was caused by it or not. The evidence will tend to show it came loose after the collision; that has nothing to do with whether it caused the collision--that's another matter.'

On three or four other occasions he made statements of like import.

Proximate cause is that cause which produces the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all of the facts...