Schwartz v. Swan

• Decision Date: 05 October 1965
• Docket Number: Gen. No. 64-107
• Citation: 63 Ill.App.2d 148,211 N.E.2d 122
• Parties: Dorothy SCHWARTZ and Clarence Schwartz, Petitioners-Appellants, v. Vada Abernathy SWAN, Lawrence Allen Bray and Mary J. Polivick, Resondents-Appellees. Adelia SCHWARTZ, Petitioner-Appellant, v. Vada Abernathy SWAN and Lawrence Allen Bray, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 122

211 N.E.2d 122

63 Ill.App.2d 148

Dorothy SCHWARTZ and Clarence Schwartz, Petitioners-Appellants, v.Vada Abernathy SWAN, Lawrence Allen Bray and Mary J.

Polivick, Resondents-Appellees.

Adelia SCHWARTZ, Petitioner-Appellant, v.Vada Abernathy SWAN and Lawrence Allen Bray, Respondents-Appellees.

Gen. No. 64-107.

Appellate Court of Illinois, Fifth District.

Oct. 5, 1965.

Alan J. Dixon, Belleville, for appellants.

Wagner, Conner, Ferguson, Bertrand & Baker, East St. Louis (Bernard H. Bertrand, East St. Louis, of counsel), for Lawrence Allen Bray.

Walker & Williams, East St. Louis (David B. Stutsman, East St. Louis, of counsel), for Vada Abernathy Swan.

GOLDENHERSH, Justice.

Plaintiffs, Dorothy Schwartz, Clarence Schwartz and Adelia Schwartz appeal from judgments entered on jury verdicts finding the issues in favor of defendants, on plaintiffs' claims for personal injuries and loss of consortium.Proper presentation of the issues raised by the appeal requires a review of the pleadings, and of certain procedural questions which arose prior to trial.

Plaintiffs, Dorothy Schwartz and Clarence Schwartz, are husband and wife.Plaintiff, Adelia Schwartz, is the widow of the deceased brother of plaintiff, Clarence Schwartz.

On July 2, 1962, plaintiffs, Dorothy and Clarence Schwartz, filed a four count complaint in the Circuit Court of St. Clair County.In Count I, plaintiff, Dorothy Schwartz, alleges that on August 13, 1960, she was a passenger in an automobile operated by plaintiff, Adelia Schwartz, that while the car in which she was riding was stopped at a stop sign, automobiles driven by the defendants, Vada Abernathy, and Lawrence Allen Bray, collided, causing Vada Abernathy's automobile to strike the automobile in which plaintiff was riding.This count contains the usual allegation of plaintiff's freedom from contributory negligence, and charges the defendants with various acts of negligence.

Count II alleges that on August 23, 1960, plaintiff, Dorothy Schwartz was riding in an automobile being driven by plaintiff, Clarence Schwartz; that the automobile was struck by a car driven by defendant, Mary J. Polivick; that plaintiff was free of contributory negligence and defendant, Mary J. Polivick was negligent.

Count I alleges that in the occurrence on August 13, 1960, plaintiff, Dorothy Schwartz, suffered injuries to her head, neck and shoulders, that on August 23, 1960, her head, neck, shoulders, arms and back were injured, and that she is unable to allege to what extent the occurrence of August 13, 1960, caused or contributed to her condition of ill being.

Count II alleges that the occurrence on August 23, 1960, in addition to the injuries caused thereby, aggravated the injuries suffered on August 13, 1960, and that she is unable to allege to what extent the injuries of which she complains resulted from either of the two occurrences.

In Count III, plaintiff, Clarence Schwartz, sues for loss of consortium resulting from the occurrence of August 13, 1960, and in Count IV seeks recover damages for loss of consortium suffered by reason of the occurrence of August 23, 1960.

On July 3, 1962, plaintiff, Adelia Schwartz, filed suit seeking to recover damages from defendants Abernathy and Bray for injuries allegedly suffered in the occurrence of August 13, 1960.

Defendants, Bray and Polivick, answered the complaints.The three defendants, Bray, Polivick, and Abernathy, filed separate motions for severance of Counts I and II of the complaint in the case of Dorothy Schwartz and Clarence Schwartz.Defendant Bray, in his motion, stated that he had no part in the occurrence of August 23 1960, cannot be held responsible for any injury caused plaintiffs on that date, and the trial of issues involving two separate accidents would prejudice a substantial right to a fair and just trial, of the defendant, Bray.Defendant, Polivick, represented by the same counsel, in identical language, moved for severance for the same reasons.Defendant, Abernathy, in her motion, states that Counts I and II constitute entirely separate causes of action, involve claims against different defendants, allege different facts, and the evidence and instructions would be so complicated and cause such confusion as to make it impossible for the jury to comprehend the proceedings, making it impossible for defendant to receive a fair trial.

After hearing arguments of counsel, the court ordered a serverance of the cases, directing that the counts pertinent to the occurrence of August 13, 1960, be severed from those pertinent to the occurrence of August 23, 1960, and further directing that they be thereafter treated as two separate cases with different docket numbers.

Plaintiffs, Dorothy Schwartz and Clarence Schwartz, sought to appeal from the order of severance, and this court(then the Fourth District) dismissed the appeal on the ground that the order of severance was not a final, appealable order.

Subsequent to the dismissal of the appeal, the court, over the objection of plaintiffs, allowed the motion of defendant, Abernathy, to consolidate the case of Adelia Schwartz with the case of Dorothy Schwartz and Clarence Schwartz, each case seeking to recover from defendants, Bray and Abernathy, for injuries suffered on August 13, 1960.

The consolidated cases involving the collision on August 13, 1960, came on for trial, the jury found for all defendants as to the claims of all three plaintiffs, judgments were entered on the verdicts, and this appeal followed.

Plaintiffs contend that the Circuit Court erred in ordering a severance in the case of plaintiff, Dorothy Schwartz, and a consolidation of the case of Adelia Schwartz, with that of Dorothy Schwartz.Numerous errors are charged during the course of the trial, and to the extent material to this decision will be hereinafter enumerated and discussed.Since the case of Clarence Schwartz is predicated solely on alleged loss of consortium, the disposition thereof is governed by the result reached in the case of Dorothy Schwartz.

We shall first consider plaintiffs' contention that the court erred in ordering the severance.Section 44 of the Civil Practice Act(Ch. 110 sec. 44,Ill.Rev.Stat.1963) provides:

'(1) Subject to rules any plaintiff or plaintiffs may join any causes of action, whether legal or equitable or both, against any defendant or defendants; * * *'.

Section 24 of the Civil Practice Act provides:

'Joinder of defendants.)(1) Any person may be made a defendant who, either jointly, severally or in the alternative, is alleged to have or claim an interest in the controversy, or in any part thereof, or in the transaction or series of transactions out of which the controversy arose, or whom it is necessary to make a party for the complete determination or settlement of any question involved therein, or against whom a liability is asserted either jointly, severally or in the alternative arising out of the same transaction or series of transactions, regardless of the number of causes of action joined.

(2) It is not necessary that each defendant be interested as to all the relief prayed for, or as to every cause of action included in any proceeding against him; but the court may make any order that may be just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in which he may have no interest.

(3) If the plaintiff is in doubt as to the person from whom he is entitled to redress, he may join two or more defendants, and state his claim against them in the alternative in the same count or plead separate counts in the alternative against different defendants, to the intent that the question which, if any, of the defendants is liable, and to what extent, may be determined as between the parties.'

Section 51 of the Civil Practice Act provides:

'Consolidation and severance of actions.An action may be severed, and actions pending in the same court may be consolidated, as an aid to convenience, whenever it can be done without prejudice to a substantial right.'

In Johnson v. Moon, 3 Ill.2d 561, 121 N.E.2d 774, 46 A.L.R.2d 1246, the Supreme Court stated that joinder of multiple plaintiffs and defendants depends broadly upon the assertion of a right to relief, or a liability, arising out of the same transaction or series of transactions, and the existence of a common question of law or fact.

Defendants cite Sommers v. Korona, 54 Ill.App.2d 425, 203 N.E.2d 768, decided on December 31, 1964, by the First District.In that case, plaintiff sought to join defendants whose alleged negligence caused injuries in separate occurrences, approximately eight months apart.The Circuit Court dismissed one of the counts.The Appellate Court held the attempted joinder to be improper and affirmed the judgment.The Supreme Court denied leave to appeal.

The same issue has been considered by the appellate courts of New York, Michigan and Minnesota.

In the case of Gamble v. Fraleigh, 1 Misc.2d 347, 146 N.Y.S.2d 146(1955)the Supreme Court of New York denied a motion to consolidate two causes of action, involving the same plaintiff, seeking to recover from two defendants for injuries resulting from automobile accidents, approximately nine months apart.The court denied the motion, stating that while there may be an interlocking question as to the extent of the injuries attributable to each occurrence, the liability problems were unique and...