Riggin v. Watson-Aven Ice Cream Co., Inc.

• Decision Date: 03 April 1939
• Docket Number: 35238.
• Citation: 188 So. 144,192 La. 469
• Court: Louisiana Supreme Court
• Parties: RIGGIN et al. v. WATSON-AVEN ICE CREAM CO., Inc., et al.

188 So. 144

192 La. 469

RIGGIN et al. v. WATSON-AVEN ICE CREAM CO., Inc., et al.

No. 35238.

Supreme Court of Louisiana.

April 3, 1939

Suit by Elbert Carl Riggin against the Watson-Aven Ice Cream Company Inc., and the Employers' Casualty Company, its insurance carrier, to recover damages for the wrongful death of his wife in an automobile collision. Suit by Coy McKaskle against the Watson-Aven Ice Cream Company, Inc., and the Employers' Casualty Company, its insurance carrier, to recover damages for personal injuries suffered by him in the same accident. The defendants filed a motion to have the suits consolidated for the purpose of trial, with separate judgments to be rendered in each suit. The trial judge overruled the motion, and the defendants apply to the Supreme Court for writs of certiorari, mandamus, and prohibition to compel consolidation of the suits.

Suits ordered consolidated, with separate judgments to be rendered in each case.

If, on trial of consolidated suits by different plaintiffs against truck owner and its insurance carrier for death and personal injuries sustained in same automobile collision, plaintiffs should be found to be entitled to recovery in amounts in excess of insurance carrier's contractual liability proportion in which plaintiffs in the two suits should share in the sum constituting the total possible liability of the insurance carrier, should be fixed at the same time.

Theus, Grisham, Davis & Leigh, of Monroe, for applicant.

C. T Munholland, of Monroe, for respondents.

ROGERS, Justice.

Elbert Carl Riggin brought suit in the Fourth Judicial District Court for the Parish of Ouachita against the Watson-Aven Ice Cream Company, Inc., and the Employers Casualty Company, its insurance carrier, to recover damages for the wrongful death of his wife in a collision between an automobile, driven by him and occupied by his wife and Coy McKaskle, and a truck owned by the Watson-Aven Ice Cream Company, Inc.

Coy McKaskle also brought suit in the same court against the Watson-Aven Ice Cream Company, Inc., and the Employers Casualty Company, its insurance carrier, to recover damages for personal injuries suffered by him in the same accident.

Answers were filed by the defendants, denying the material allegations in each petition and pleading, in the alternative, the contributory negligence of plaintiffs. The Employers Casualty Company further pleaded the terms and limitations of the insurance policy, as an additional alternative defense.

The cases were assigned for trial in the district court for February, 7, 1939. On that day the suit of Coy McKaskle, appearing first on the docket, was called for trial, whereupon counsel for the defendants filed a motion to have the McKaskle suit consolidated with the Riggin suit for the purpose of trial, with separate judgments to be rendered in each suit. On objection by counsel for the plaintiffs, the trial judge overruled the motion and ordered the cases to be separately tried. Counsel for defendants then invoked the supervisory jurisdiction of this court.

Respondents Riggin and McKaskle, in answer to the rule nisi, urged that their objection to the consolidation of the cases was well-founded because they are, first, by different plaintiffs; second, involve different subject matter; third, contain different demands and causes of action; and, fourth, require the rendition of separate and distinct judgments.

Respondents plead that there is no authority either under the Code of Practice or the jurisprudence of the state whereby they may be compelled to consolidate their causes of action for trial, but that, on the contrary, they are entitled under the law to separate trials of the cases.

There is no express authority under the provisions of the Code of Practice for the consolidation of suits where two or more parties have instituted suit against the same defendant. The only provision of the Code of Practice bearing upon the consolidation of suits is Article 422, which authorizes consolidation only where parties have instituted suit against each other in the same court. Obviously, the consolidation sought by relators cannot be ordered under this codal article. But the Code of Practice does not exclude remedies other than those therein expressly provided. On the contrary, Article 130 declares that judges shall possess the powers necessary for the exercise of their respective jurisdictions, inherently and independently of express law, and by necessary implication it given legislative sanction to the exercise of those powers. In the case of Union Garment Co. v. Newburger, 124 La. 820, 50 So. 740, which was cited and approved in Fried v. New York Life Ins. Co., 177 La. 132, 148 So. 5, it was held that all courts have the inherent power to order consolidation in proper cases, and that the right of consolidation was not dependent solely on Article 422 of the Code of Practice.

Where the law is silent, courts will afford other proper remedies not prohibited, if the interests of justice will be promoted thereby. Allen v....