Sommers v. Korona

• Decision Date: 31 December 1964
• Docket Number: Gen. No. 49536
• Citation: 54 Ill.App.2d 425,203 N.E.2d 768
• Parties: Alvin SOMMERS, Plaintiff-Appellant, and Rosalie Solomon, Plaintiff, v. Chester KORONA, Defendant, and Nado Massari and Irene Massari, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 768

203 N.E.2d 768

54 Ill.App.2d 425

Alvin SOMMERS, Plaintiff-Appellant and Rosalie Solomon, Plaintiff, v. Chester KORONA, Defendant and Nado Massari and Irene Massari, Defendants-Appellees.

Gen. No. 49536.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 31, 1964.

John G. Phillips, Chicago, for appellant.

Hubbard, Hubbard, O'Brien & Hall, Chicago, for appellees.

McCORMICK, Justice.

This appeal is taken by plaintiff, Alvin Sommers, from an order of the trial court dismissing Count I of the complaint.

Count I alleged that on December 28, 1962, the plaintiff, Alvin Sommers, was operating a motor vehicle, and that while he was in the exercise of due care for his own safety, the defendants, Irene Massari and Nado Massari, who were also operating a motor vehicle, collided with the rear of the plaintiffs' vehicle, causing the plaintiff, Alvin Sommers, to suffer 'severe, multiple, and permanent injuries.' The next paragraph states that as a consequence of said injuries above enumerated, 'there exists a common question of fact regarding the plaintiff, Alvin Sommers, the allegations which appear in Count II.' It is further stated that as a direct and proximate result of the negligence of the defendant, the plaintiff, Alvin Sommers, suffered and sustained 'divers serious wounds and injuries in and about his head, body, arms, and legs, which caused injuries of a permanent and lasting nature.'

Count II alleged that on August 15, 1963, the plaintiff, Alvin Sommers, was operating a motor vehicle and was exercising due care. Accompanying him was Rosalie Solomon. It further alleged that both Sommers and Solomon at the time were exercising due care for their own safety; that the defendant, Chester Korona, who was also operating a motor vehicle, collided with the rear of Sommers' vehicle, causing 'severe, multiple and permanent injuries' to both plaintiffs; and it repeats the same statement enumerating the injuries made in Count I.

The defendants, Nado Massari and Irene Massari, on October 22, 1963, filed a motion to dismiss Count I of plaintiffs' complaint, and in that motion stated that the Massaris have never had any affiliation, association or connection with Korona, and that the accidents of December 28, 1962 and August 15, 1963, have no association or relevance, and that the parties-plaintiff in the two counts are not identical.

On November 13, 1963, defendant Korona filed an answer to Count II of the complaint. On November 18, 1963, an order was entered permitting an affidavit of John G. Phillips, attorney for the plaintiff, Alvin Sommers, to be filed. In that affidavit he states that he filed the suit against the defendants in accordance with Section 24 and Section 44 of the Civil Practice Act, Ill.Rev.Stat.1963, c. 110, §§ 24, 44, it appearing that the plaintiff, Alvin Sommers, received injury to the same portion of his body in the two separate accidents, and that it would be prejudicial to the plaintiff to try the cases separately for the reason 'that there exists this common question of fact which can only be adjudicated by one jury.'

On the same day the trial court entered an order dismissing the Massaris as defendants in the action and also dismissing Count I of the complaint. The order contained the required provision under Section 50(2) of the Civil Practice Act. From that order this appeal is taken.

The plaintiff in this court relies upon certain sections of the Civil Practice Act. Section 44(1) provides:

'Subject to rules any plaintiff or plaintiffs may join any causes of action, whether legal or equitable or both, against any defendant or defendants; and subject to rules the defendant may set up in his answer any and all cross demands whatever, whether in the nature of recoupment, setoff, cross bill in equity or otherwise, which shall be designated counterclaims.'

Section 44(2) provides:

'The court may, in its discretion, order separate trial of any causes of action, counterclaim or third-party claim if it cannot be conveniently disposed of with the other issues in the case. * * *'

Section 26 provides:

'No action shall be dismissed for misjoinder of parties, or dismissed for nonjoinder of necessary parties without first affording reasonable opportunity to add them as parties. * * *'

Section 23 provides:

'Subject to rules, all persons may join in one action as plaintiffs, in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally or in the alternative, whenever if those persons had brought separate actions any common question of law or fact would arise: provided, that if upon the application of any party it shall appear that joinder may embarrass or delay the trial of the action, the court may order separate trials or enter any other order that may be expedient. Judgment may be given for any one or more of the plaintiffs who may be found to be entitled to relief, for the relief to which he or they may be entitled.'

Section 24 provides:

'(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.'

There is no question that the Practice Act should be liberally construed. American Transp. Co., Inc. v. United States Specialties Corp., 2 Ill.App.2d 144, 118 N.E.2d 793. At common law it was held that the plaintiff had the option of suing joint tort-feasors jointly or severally, and the joinder of causes of action was to a great extent controlled by the writ system and the forms of action. It was further held that various claims falling within the legal limits of a single form of action might be joined in different counts even though based on widely separated groups of facts. Clark on Code Pleading (2nd Ed. 1947), Sec. 59. In equity there was a much greater liberality, and its practice permitted a much wider joinder; however, even in equity the bill could not be multifarious, and joinder was permitted only where the various causes could be tried in a single suit more conveniently, where a multiplicity of suits would be avoided and no unreasonable hardship would be caused the party against whom the relief was asked. Cohagan v. Cohagan, 294 Ill. 439, 128 N.E. 494. When the codes of practice were adopted the rule, which had heretofore prevailed in courts of chancery, was brought into the courts of law.

Under our Civil Practice Act a joinder of parties-defendant is proper when it is necessary to make the person a partydefendant 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.' (Section 24.)

The Practice Act, in sub-paragraph (2) of that section, further provides that 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 the proceeding; and the court is permitted to make orders to prevent any defendant from being embarrassed or forced to incur expenses by being required to attend proceedings in which he may have no interest. There is a further provision for the joinder of two or more defendants by stating the plaintiff's claim in the alternative. The sections with reference to joinder of parties must be read and construed together with Section 44 pertaining to joinder of causes of action. Opal v. Material Service Co., 9 Ill.App.2d 433, 133 N.E.2d 733.

In Johnson v. Moon, 3 Ill.2d 561, at page 567, 121 N.E.2d 774, at page 777, the court, after discussing joinder of parties before the enactment of the Civil Practice Act, stated:

'The Civil Practice Act establishes quite different standards to govern the joinder of parties and of causes of action whether at law or in equity. As between a single plaintiff and a single defendant, it permits the joinder of causes of action without limitation, subject only to the formal requirement that separate causes of action be separately stated. (Secs. 43, 44; Ill.Rev.Stat.1953, chap. 110, pars. 167, 168.) Joinder of multiple plaintiffs and of multiple defendants now 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. (Secs. 23, 24; Ill.Rev.Stat.1953, chap. 110, pars. 147, 148.) * * *

'These provisions show a deliberate purpose to relax the common-law limitations upon the scope of an action and to broaden the rules as to those who may be joined as parties. In many respects, the equitable standard of administrative convenience is substituted for the restrictive rules of the common law; * * *. An additional safeguard which accompanies the broad joinder of multiple parties which the act permits is the requirement that the matters to be litigated arise from the same 'transaction or series of transactions' and involve a common question of law or fact.'

Johnson v. Moon was a case involving a collision between a car and a tractor-trailer....