Shacter v. Richter

• Decision Date: 23 April 1965
• Docket Number: No. 39668,39668
• Citation: 271 Minn. 87,135 N.W.2d 66
• Parties: Ronald SHACTER, a minor, by Joseph Shacter, his father and natural guardian, Respondent, v. Theodore RICHTER, Leo Breitman and Joseph Blockey, Relators. Ronald SHACTER, Respondent, v. Robert SPEETER, Sr., and Robert Speeter, Jr., Relators.
• Court: Minnesota Supreme Court

Page 66

135 N.W.2d 66

271 Minn. 87

Ronald SHACTER, a minor, by Joseph Shacter, his father and natural guardian, Respondent, v. Theodore RICHTER, Leo Breitman and Joseph Blockey,

Relators.

Ronald SHACTER, Respondent, v. Robert SPEETER, Sr., and Robert Speeter, Jr., Relators.

No. 39668.

Supreme Court of Minnesota.

April 23, 1965.

Syllabus by the Court

1. Where there was a common question of fact as to damages, it was within the power of the trial court under Rule 42.01, Rules of Civil Procedure, to order two separate actions instituted by the same plaintiff to be tried together, even though the actions arose out of separate occurrences involving different defendants.

2. In ordering consolidation of actions for trial, a trial court should be guided by the principle that the interest of parties in a fair trial, free from prejudice and confusion, should not be sacrificed to the policy of convenience and economy, and that in granting a motion to consolidate, the advantage of convenience must be balanced against the possibility of prejudice.

3. It is not for an appellate court to anticipate or prohibit errors of the trial court or to interfere with his discretionary orders as to trial procedure.

Meagher, Geer, Markham & Anderson, Thomas L. Adams, O. C. Adamson, II, Peterson & Holtze, Minneapolis, for relators.

Hvass, Weisman & King, Minneapolis, for respondent.

MURPHY, Justice.

This matter is before us on a writ of prohibition which raises the issue as to whether the trial court exceeded its jurisdiction in consolidating two separate actions for trial.

From the facts contained in the record before us, it appears that the first action grew out of injuries sustained by the plaintiff on November 5, 1959, when he was injured in an automobile accident while riding as a passenger in a car driven by defendant Theodore Richter and owned by defendant Leo Breitman, which collided with an automobile driven by defendant Joseph Blockey. The second action grew out of an automobile accident which occurred 3 1/2 years later, on April 22, 1963, when the plaintiff was injured while he was riding as a passenger in a car driven by his brother which collided with a vehicle operated by defendant Robert Speeter, Jr., who was driving with the permission and consent of his father, defendant Robert Speeter, Sr.

The affidavit of plaintiff's counsel in support of the motion to consolidate the actions for trial states that 'the injuries sustained in the second accident involved an aggravation of injuries sustained in the first accident.' Plaintiff argued that the actions should be consolidated in the interest of 'saving trial time and expense to the parties, as well as to the District Court of Hennepin County.' On petition of defendants, who assert that the district court exceeded its legitimate power and authority in ordering the consolidation, we subsequently issued the writ of prohibition.

The actions were consolidated pursuant to Rule 42.01, Rules of Civil Procedure, which provides:

'When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.'

Defendants argue that the application of this rule is circumscribed and limited by Rule 20.01, which permits joinder of claims and parties. So far as applicable here, that rule provides:

'Persons may join in one action as plaintiffs if they assert jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of fact or law common to all of them will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action.'

The defendants ask us to hold in effect that consolidation under Rule 42.01 may be ordered only where the actions arise out of the same transactions and might have been joined in the first instance. It should be observed at the outset that Rule 42.01 is the same as Federal Rule 42(a). In 2B Barron & Holtzoff, Federal Practice and Procedure (Rules ed.) § 941, p. 172, it is pointed out that consolidation may be used under circumstances where several actions are ordered 'to be tried together but each retains its separate character and requires the entry of a separate judgment. This type of consolidation does not merge the suits into a single action, or cause the parties to one action to be parties to another.' It is apparently in this sense that the trial court ordered the consolidation, assuming that the separate issues with reference to liability could be fairly tried together and that there could also be a determination as to how much each defendant contributed to the plaintiff's injuries. The trial court apparently concluded that the consolidation was permissible in that there was a common question of fact as to damages.

The defendants contend that there is no authority for consolidation under the circumstances and further that the consolidation would be prejudicial in that they would find themselves at trial in the unenviable position of adversaries, each attempting to prove the negligence and wrongful conduct of the others. They argue that prohibition is available as a remedy, claiming that the order for consolidation is not only beyond the power of the court, but an abuse of discretion which leaves them with no other adequate remedy at law. State ex rel. Stenstrom v. Wilson, 234 Minn. 570, 48 N.W.2d 513; State ex rel. Hierl v. District Court, 237 Minn. 456, 54 N.W.2d 5; Weidel v. Plummer, 243 Minn. 476, 68 N.W.2d 245.

1. In support of their argument that the trial court went beyond its power in ordering consolidation, defendants rely on certain New York authorities which are on all fours with the facts in this case. These cases are Gamble v. Fraleigh, 1 Misc.2d 347, 146 N.Y.S.2d 146; Abbatepaolo v. Blumberg, 7 A.D.2d 847, 182 N.Y.S.2d 83; and Pride v. Perras, 6 A.D.2d 842, 176 N.Y.S.2d 573. In the latter case, the court said (6 A.D.2d 842, 176 N.Y.S.2d 574):

'* * * The injuries sustained did not arise from the same accident, but from two unrelated accidents as a result of unrelated acts of negligence and at different times. The convenience of one trial does not overcome the prejudice that may result to appellants, and the confusion which the jury will encounter in trying to determine the extent of the injuries attributable to each, and the compensation therefor. Gamble v. Fraleigh, 1 Misc.2d 347, 146 N.Y.S.2d 146; Nissenblatt v. Doyle, 6 Misc.2d 205, 163 N.Y.S.2d 271.'

These cases are without force here because the New York court was controlled by § 96--a of the New York Civil Practice Act, ¹ which provided:

'The court may order that two or more actions * * * growing out of the same set of facts be tried or heard together, without consolidation, whenever it can be done without prejudice to a substantial right.'

It should be noted that the foregoing provision permitted actions 'growing out of the same set of facts' to be tried together, a condition not found in Rule 42.01 by which we are governed.

The subject of consolidation of actions is treated in a comprehensive annotation in 68 A.L.R.2d 1372. Some of the authorities gathered therein relate to actions brought for injuries to person or property arising out of the same wrongful act or caused by the same wrongful act usually against the same defendant by different plaintiffs. The cases cited in which different party defendants are named in an action by the same plaintiff relate to damages arising out of the same accident. The situation in which plaintiff seeks consolidation of two separate causes of action arising out of two separate occurrences involving two separate sets of defendants is unique and has not been considered by this court since the adoption of the Rules of Civil Procedure. There is some discussion of the general subject in Professor Wright's article in 36 Minn.L.Rev. 601, in which he refers to a related question considered in McGannon v. Chicago & N.W. Ry. Co., 160 Minn. 143, 199 N.W. 894. This source of authority is of no help in considering the application of Rule 42.01.

The plaintiff argues that the 'common question of law or fact' test expressed in Rule 42.01 gives the trial court wide discretion in carrying out the policy which the rules comprehend to avoid unnecessary trials, prevent delay, save expense to the parties, and eliminate injustice which may follow from divergent results in separate actions. Plaintiff relies on Adams v. Allstate Ins. Co., 58 Wash.2d 659, 364 P.2d 804; Stanford v. Tennessee Valley Authority (M.D.Tenn.) 18 F.R.D. 152; and McNeil v. American Export Lines, Inc. (E.D.Pa.) 166 F.Supp. 427. In the McNeil case separate actions involving separate transactions against different defendants were consolidated. From an examination of the abbreviated opinion in that case, it would appear, however, that there was some substantial connection between the two actions consolidated. In the other authorities it would also appear that there was a sufficient connection or unity between the actions joined which would warrant a joint trial without prejudice to the defendants. In each of the authorities relied upon by plaintiff there appeared to be a substantial community of common questions of law or fact which reasonably warranted the consolidations approved. They are authority for the proposition, however, that the mere fact that the parties are different and that the actions arise from separate...