Martin v. Johnson

• Decision Date: 05 December 1978
• Docket Number: Docket No. 30075
• Citation: 274 N.W.2d 785,87 Mich.App. 342
• Parties: Tony MARTIN, Plaintiff-Appellee, v. Juanita O. JOHNSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 785

274 N.W.2d 785

87 Mich.App. 342

Tony MARTIN, Plaintiff-Appellee, v. Juanita O. JOHNSON, Defendant-Appellant.

Docket No. 30075.

Court of Appeals of Michigan.

Dec. 5, 1978.

Released for Publication Feb. 9, 1979.

Thomas J. Guyer, Wayne County Neighborhood Legal Services, River Rouge, for defendant-appellant.

Harvey Chayet, Detroit, for plaintiff-appellee.

Before BASHARA, P. J., and BRONSON and SIMON, ^* JJ.

SIMON, Judge.

This interlocutory appeal concerns the splitting of a cause of action arising from an automobile accident. On February 14 1973, appellee, Tony Martin, and appellant, Juanita Johnson, were involved in a collision wherein Martin allegedly sustained both physical injury and property damage. Martin, however, was insured and, therefore, reimbursed $503.16 by his insurance carrier, Motors Insurance Corporation (hereinafter referred to as MIC), for the damage to his automobile. Because of this payment, MIC became subrogated to Martin's claim for damage, and on January 10, 1974, filed suit in the Common Pleas Court of Detroit to recover from Johnson.

On April 10, 1974, Johnson, defendant in this action, moved pursuant to GCR 1963, 205.1 to join Martin as a party plaintiff. However, MIC opposed the motion and prevailed in having Martin excluded. Thereafter, the cause proceeded to trial on the merits where, despite Martin's testimony which was proffered by MIC, a judgment of no cause of action was rendered.

The present action was instituted on August 12, 1974, in the Wayne County Circuit Court. It was brought by Martin against Johnson to recover for the personal injuries he allegedly sustained in the accident. Johnson responded by asserting the prior common pleas adjudication and Martin's failure to join in the previous suit. She moved for accelerated judgment under GCR 1963, 116.1(5), but such motion was denied by the trial court on the ground that Martin's suit was not barred by the prior adjudication because he was neither a party nor in privity with any party to the former action. We granted leave to appeal.

This case poses an interesting twist to a classic, yet recurring, problem which arises out of the insurance practice providing for subrogation of the insurer for its insured with regard to the insured's claim against a third-party tortfeasor after payment by the insurer of only part of that claim. See Anno: Simultaneous injury to person and property as giving rise to single cause of action, 62 A.L.R.2d 977; Anno: Rights and remedies incident to subrogation to one but not both elements of a single cause of action for injury to person and damage to property, 140 A.L.R. 1241; 166 A.L.R. 870. In such case, either or both could commence suit against the wrongdoer. GCR 1963, 201.2. See Worth v. Wagner, 255 Mich. 433, 238 N.W. 175 (1931). Their rights being distinct, the insured would seek recovery on the basis of personal injury or damage to his automobile caused by the collision, and the insurer upon the basis of damage which it had been compelled to pay on account of the collision, under the terms of the policy. 15 Blashfield, Automobile Law & Practice (3d ed.), § 484.2, p. 177.

Traditionally, since both causes arose out of one tortious act, Michigan law considered them to comprise but one cause of action. General Accident Fire & Assurance Corp., Ltd. v. Sircey, 354 Mich. 478, 93 N.W.2d 315 (1958); Coniglio v. Wyoming Valley Fire Ins. Co., 337 Mich. 38, 59 N.W.2d 74 (1953). Thus, an action by the insurer against the tortfeasor for property damage would operate to preclude a subsequent action by the insurer for personal injury, or vice-versa. 1 Am.Jur.2d, Actions, § 149, pp. 662-663. The policy behind this rule, of course, was to protect the defendant from a vexatious multiplicity of suits. Coniglio v. Wyoming Valley Fire Ins. Co., supra.

Modernly, while there is still but one cause of action, GCR 1963, 205.1 has replaced the common law rule against splitting a cause of action. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), committee comment (3), p. 544. Chunko v. LeMaitre, 10 Mich.App. 490, 159 N.W.2d 876 (1968). Since joinder is mandatory rather than permissive the rule makes it obvious that such joinder is required for the benefit of the opposite party and thereby places the burden of objecting to misjoinder on the opposite party. 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), committee comment (3), pp. 544-545. Under GCR 1963, 111.3 failure to object would result in waiver of the defense of failure to join and allow the cause of action to be split. Chunko v. LeMaitre, supra.

Here, defendant Johnson posed a timely motion, but, according to the Common Pleas Court, failed to demonstrate sufficient grounds to justify joinder. The motion was denied and never appealed. Thus, regardless of the propriety of the Common Pleas Court's decision, it is not now subject to collateral attack. 56 Am.Jur.2d, Motions, Rules and Orders, § 46, p. 40.

This is not to say that we condone the splitting of a cause of action. Certainly, had the facts at the time of the common pleas determination been as they appear now joinder would have been required. Not only does the individual party have an interest in avoiding the burden of multiple litigation, but the courts and public have an important interest in the complete, consistent and efficient settlement of controversies which necessitates the settling of disputes by wholes. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968). Whenever possible, these interests should be served by joinder.

Since, however, defendant Johnson waived objection to the cause of action being split, the question arises whether the common pleas adjudication adverse to MIC in any way effects an estoppel against Martin in the case at bar. As with the initial question, whether a cause of action may be split, there is no agreement among the jurisdictions on this point. Anno: Judgment in action growing out of accident as res judicata, as to negligence or contributory negligence, in later action growing out of same accident by or against one not a party to earlier action, 23 A.L.R.2d 710; Anno: Judgment...