Rode v. Adley Express Co. Inc. Schultz

• Decision Date: 13 July 1943
• Citation: 33 A.2d 329,130 Conn. 274
• Court: Connecticut Supreme Court
• Parties: RODE v. ADLEY EXPRESS CO., Inc., et al. SCHULTZ v. SAME. DELAMETER v. SAME. HARBERT v. SAME.

130 Conn. 274

33 A.2d 329

RODE

v.ADLEY EXPRESS CO., Inc., et al.

SCHULTZ

v.SAME.

DELAMETER

v.SAME.

HARBERT

v.SAME.

Supreme Court of Errors of Connecticut.

July 13, 1943.

Appeal from Superior Court, New Haven County; Wynne, Judge.

Actions by George Rode and by Walter Schultz and by Eleanor Delameter and by Adelaide D. Harbert against the Adley Express Company, Inc., and other for injuries to person and property resulting from automobile-truck collision allegedly caused by negligence of defendants. Named defendant filed a counterclaim in the action by George Rode. George Rode was named as an additional defendant in the actions by Eleanor Delameter and Adelaide D. Harbert. The actions were brought to the superior Court and tried to the jury. Verdict and judgment in each case were for plaintiff against named defendant, and defendant Carrano, and such defendants appeal, and from judgments for additional defendant Rode, Eleanor Delameter and Adelaide D. Harbert appeal.

Error in amount of judgment in action by George Rode only.

Philip R. Shiff, of New Haven, for appellants.

A. W. Firestone, of Hartford (Morton E. Cole and Cyril Cole, both of Hartford, on the brief), for appellants-appellees.

Edward C. Carroll, of Hartford, for appellees.

M. J. Blumenfeld, of Hartford (DeLancey Pelgrift, of Hartford, on the brief), for appellee Rode.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

JENNINGS, Judge.

Rode, the driver, and the three passengers in his pleasure car brought negligence actions against the Adley Express Company, Inc., and Carrano, the driver of its truck, agency being admitted. Two of the passengers, Delameter and Harbert, also named Rode as an additional defendant. The Adley Company filed a counterclaim in the Rode action for damage to its truck. It objected to the trial of these cases together on the ground that a confusion of issues would result, but this objection was overruled.

‘Independent of statutory authority, courts of general jurisdiction have inherent power to consolidate different causes, or order them tried together, when the circumstances authorize such course; and, unless otherwise provided by statute, questions respecting such procedure are addressed to the discretion of the trial court, and its action will not be revised unless an abuse of discretion clearly appears.’ Yardley v. Rutland R. Co., 103 Vt. 182, 185, 153 A. 195, 196. While there appears to be no Connecticut case directly in point, this is the general rule. Benge's Adm'r v. Fouts, 163 Ky. 796, 807, 174 S.W. 510; Paducah Traction Co. v. Walker's Adm'r, 169 Ky. 721, 722, 185 S.W. 119; Azinger v. Pennsylvania R. Co., 262 Pa. 242, 245, 105 A. 87; Woodstock Operating Corporation v. Young, 5 Cir., 268 F. 278, 281; Lumiansky v. Tessier, 213 Mass. 182, 187, 99 N.E. 1051, Ann.Cas.1913E, 1049. The fact that the issue of contributory negligence might apply to the case of one plaintiff and not to that of the others would not prevent the trial of the cases together. Yardley v. Rutland R. Co., supra; Farrar v. Hank, 205 Ky. 89, 91, 265 S.W. 487.

As is pointed out in Dettenborn v. Hartford-National Bank & Trust Co., 121 Conn. 388, 392, 185 A. 82, 84, ‘the public has an interest in the prevention of unnecessary litigation, both because of the burden it places on the state and the resulting crowding of the dockets of the courts.’ This procedure of trying cases together, which has long been the established practice in this state, assists in expediting business without doing anyone an injustice. Section 822f of General Statutes, Supplement of 1941, approves this policy by providing for the consolidation of actions arising out of the same transaction.

In this case counsel and the trial court cooperated to clarify the issues and to keep the four cases separate. The charge was very helpful in this respect. The trial resulted in consistent verdicts. These ran in favor of each plaintiff and of Rode when he was a codefendant with the Adley Company. The ruling of the trial court that these cases should be tried together was within its discretion and not erroneous.

The collision causing the injuries occurred at the intersection of Park and Broad Streets in Hartford at 3 a. m. on May 24, 1941. Rode was proceeding north on Broad Street and the truck east on Park Street. Rode was thus approaching from the right of the truck. The front of the truck struck the rear left side of the pleasure care within the northeast quadrant of the intersention. Both drivers claimed the right of way.

Herbert C. Buxton, the only disinterested witness of the collision, was night manager of a restaurant on the northwest corner of the intersection and gave evidence from which the jury could reasonably have concluded that Rode had the right of way and that the named defendant was liable. The defendants stated, in effect, in their brief and in oral argument, that if Buxton was a credible witness they were liable. They claim that the physical facts prove that his testimony was false and that a written statement made by him out of court confirms that conclusion. An analysis of the testimony would serve no useful purpose here. The physical facts did not compel the finding sought by the defendants. Willows v. Snyder, 116 Conn. 213, 215, 164 A. 385; Porcello v. Finnan, 113 Conn. 730, 732, 156 A. 863. As to the inconsistency between Buxton's testimony and his statement, the jury were the judges of his credibility as a witness and it cannot be held as a matter of law that they should have disregarded the evidence given by him. Id., 113 Conn. at page 733, 156 A. 863. Even though the truck did enter the intersection first, as claimed by the defendants, that would not establish that it had the right of way. As Rode's car was upon the right of the truck, the truck would not have the right of way unless its driver could reasonably believe that, if both cars continued to run at the rate of speed at which they were running, there would not be a risk of collision but that he could cross in safety in front of Rode's car.

Neumann v. Apter, 95 Conn. 695, 701, 112 A. 350; Carlin v. Haas, 124 Conn. 259, 264, 199 A. 430; Catania v. Conforte, 130 Conn. 178, 181, 32 A.2d 646. There was no error in the denial of the motions to set aside the verdicts on the question of liability.

The exceptions to the charge will be considered in the order in which they appear in the Alley Company's brief. In discussing the cases of Delameter and Harbert, the court charged as follows: ‘That negligence only, therefore, is the proximate cause of an injury which is in fact an efficient act of causation separated from its effect by no other act of causation; or, as is sometimes said, the last conscious agent in producing an injury, is the party liable for it.’ The defendants claim that the italicized words required a finding that either Rode or Carrano was liable, but not both, and that the possibility of there being concurrent negligence was excluded. While the clause under consideration may have its place in the philosophy of proximate cause (see Howard v. Redden, 93 Conn. 604, 609, 107 A. 509, 7 A.L.R. 198) it was not applicable to the facts of this case and the question is whether the issue of concurrent negligence was foreclosed thereby. The charge is to be read as a whole. Kerin v. Baccei, 125 Conn. 335, 337, 5 A.2d 876. The paragraphs immediately preceding and following the statement complained of as well as other specific paragraphs and the charge as a whole negative any possibility that the jury could have understood it in that sense.

Even assuming that the charge on concurrent negligence was insufficient, the Adley Company, as codefendant with Rode in the Delameter and Harbert cases, has no cause for complaint. ‘If the illegal conduct of each of the defendants was a proximate cause of the collision, they would be liable jointly and severally, the plaintiff would have a right to recover the entire amount of damages awarded from either, and, if he did so, the defendant paying them would have no right of contribution against the other;...