S.A. Gerrard Company, a Corp. v. Couch, Civil 3365

• Decision Date: 05 February 1934
• Docket Number: Civil 3365
• Citation: 29 P.2d 151,43 Ariz. 57
• Parties: S.A. GERRARD COMPANY, a Corporation, Appellant, v. R. K. COUCH and JOHN REID, by C. C. REID, His Guardian ad Litem, Appellees
• Court: Arizona Supreme Court

29 P.2d 151

43 Ariz. 57

S.A. GERRARD COMPANY, a Corporation, Appellant, v. R. K. COUCH and JOHN REID, by C. C. REID, His Guardian ad Litem, Appellees

Civil No. 3365

Supreme Court of Arizona

February 5, 1934

APPEAL from a judgment of the Superior Court of the County of Navajo. P. A. Sawyer, Judge. Affirmed as to appellee Couch and reversed as to appellee Reid.

Messrs Baker & Whitney and Mr. Lawrence L. Howe, for Appellant.

Mr Sidney Sapp and Mr. C. H. Jordan, for Appellee Couch.

Mr John L. Sweeney, for Appellee Reid.

OPINION

ROSS, C. J. R.

K. Couch and John Reid, by his guardian ad litem, C. C. Reid, each sued S. A. Gerrard Company upon separate causes of action for personal injuries sustained when the car in which they were riding ran into and against a GMC truck of defendant parked on public highway 66, about one and one-half miles east of Holbrook, Arizona, without any head or tail lights or other warning. The defendant's answer consisted of a general denial and the defense of contributory negligence on the part of plaintiffs. The trial was before a jury which returned verdicts for plaintiffs and upon which judgments were entered. The defendant has appealed therefrom.

The first error assigned is the order of the court consolidating the two cases for the purpose of trial. Section 3804 of the Revised Code of 1928 authorizes the consolidation of pending actions between the same plaintiff and the same defendant when the causes of action may be joined, or where the same plaintiff has several actions against several defendants which may be joined. These consolidations are discretionary with the court, but when made are for all purposes. That section also provides for consolidations for trial only in this language:

"Whenever several actions are pending by different plaintiffs against the same defendant, or by the same plaintiff against different defendants, arising out of the same transaction, the court may, in its discretion, order that any two or more of such actions be tried at the same time and before the same jury, and that separate verdicts be rendered and separate judgments be entered thereon."

In the present case the two causes of action arose out of the same act or omission or accident. The defendant contends that the word "transaction" in the statute has reference to the "subject-matter" only. An examination of the authorities shows that this word has received many definitions, depending upon its context. It embraces both contractual relations and occurrences in the nature of torts. Stark County v. Mischel, 33 N.D. 432, 156 N.W. 931. Construing a statute providing that persons interested in separate causes of action might join if the causes arose out of the same transaction, in Metropolitan Casualty Ins. Co. v. Lehigh Valley R. Co., 94 N.J.L. 236, 109 A. 743, 744, the court said:

"But it is argued, not without some force, that the words 'transaction or series of transactions' do not include torts, but refer to contracts, business, and the like. While this may be the primary signification of the word, yet it is broader and more comprehensive. It is synonymous with 'act,' 'action,' 'affair,' 'business,' and the like. Standard Dict. It is a term broader than 'contract.' Contract is a transaction, but a transaction is not necessarily a contract. Xenia Branch Bank v. Lee, 7 Abb. Prac. (N.Y.) 372, 389; Roberts v. Donovan, 70 Cal. 113, 9 P. 180, 11 P. 599.

"The word 'transaction' is not limited or confined to actions arising out of contracts. Pelton v. Powell, 96 Wis. 473, 71 N.W. 887. That it includes actions of torts cannot be reasonably doubted. Deagan v. Weeks, 67 A.D. 410, 73 N.Y.S. 641.

"In a general sense, a transaction is where both causes of action proceed from the same wrong."

The same evidence was necessary in both cases to prove the facts. The evidence of defendant applied alike to both plaintiffs. Both actions were for damages for the same wrongful act of defendant and differed only in the character and extent of the injuries sustained. The court did not abuse its discretion in ordering the consolidation. It was in the economic interests of all parties, including the court, to have but one trial instead of two, and it does not appear that defendant was prejudiced thereby.

It is necessary to give a brief resume of the facts before considering the other assignments. There was no material dispute in the evidence. The manner and circumstances under which the plaintiffs were injured are as follows: The plaintiffs Couch and John Reid, as guests of C. C. Reid, were on their way from Adamana, where they worked, to Holbrook, Arizona, for the purpose of getting their pay checks cashed. They were riding in a Ford roadster with the owner, C. C. Reid, at the wheel. The night was dark and cloudy and it was raining off and on. When within about one and one-half miles of holbrook, and while traveling about thirty miles an hour, on the right-hand or north side of the road, between 7 and 8 o'clock in the evening of October 19, 1931, they ran into and against the rear end of defendant's GMC truck. They were going west and the truck was parked on the same side of the road on which they were traveling and headed west. The impact was with tremendous force and as a result the roadster was completely demolished. It caught on fire, and before the plaintiffs could be removed both were burned, Couch rather severely. The truck was not lighted with either a head or tail light or otherwise at the time, and the testimony of the three occupants of the roadster was that it was not seen by them until they were within six or eight feet of it. The truck was painted a blue-green or dark color, and it and its load assimilated in color the surrounding darkness. The driver of the truck was at the time underneath it trying to repair the battery, that had suddenly failed to function about thirty minutes before leaving him without either power or light, so that he could not display a warning light nor get out of the main-traveled road but was compelled to park where he did. The roadster was equipped with good lights, fully complying with the law, and had efficient brakes. Where the accident happened the road was straight and level, with no dips or rises either way for several hundred feet. It was open desert on both sides. The road was dirt surfaced, about 17 1/2 feet wide, with shoulders of blow sand on each side a few inches higher than the roadbed.

Assignments 2, 3 and 5 make the point that since the evidence conclusively shows that the plaintiffs and the driver of the Ford roadster were guilty of contributory negligence in not looking for and seeing the parked truck in time to avoid the collision with it, the court should have granted its motion for an instructed verdict or, failing in that, its motion for a new trial. There is no complaint of the instructions on the issue of contributory negligence. At most, such issue gave rise to a question of fact for the determination of the jury whose decision thereon was final. Section 5 of article 18 of the Constitution reads: "The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury." This, and the numerous decisions under it, is decisive of the question.

Likewise the question as to whether defendant under the circumstances exercised ordinary care was submitted under proper instructions to the jury. Section 1623 of the Revised Code of 1928 provides that "a vehicle stopped upon a highway whether attended or unattended" shall have displayed upon it "one or more lamps projecting a white light visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle and projecting a red light visible under like conditions and distance to the rear, except that no lights need be displayed upon any such vehicle when parked upon a highway where there is sufficient light to reveal it within a distance of two hundred feet upon such highway."

There is no question but that defendant's truck was equipped with lights conforming with this statutory provision. When the battery, the source of the light and power, ceased to function, the truck stopped and the lights went out, leaving the driver thereof no alternative except to stop or park in the road where he did. Whether it was the negligence of the driver, in failing to use proper means to warn others of the truck's...