State ex rel. Allen v. Yeaman

• Decision Date: 07 April 1969
• Docket Number: No. 25013,25013
• Citation: 440 S.W.2d 138
• Parties: STATE of Missouri ex rel. Shirley Lee ALLEN and Norma Jane Tipton, Relators, v. Honorable John M. YEAMAN, Judge of the Circuit Court Andrew County, Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 138

440 S.W.2d 138

STATE of Missouri ex rel. Shirley Lee ALLEN and Norma Jane Tipton, Relators, v. Honorable John M. YEAMAN, Judge of the Circuit Court Andrew County, Missouri, Respondent.

No. 25013.

Kansas City Court of Appeals, Missouri.

April 7, 1969.

Strop, Watkins, Robert & Hale, James E. Taylor, St. Joseph, J. F. Allebach, Albany, for relators.

Walter A. Raymond, Blaine E. Strader, Raymond, West & Strader, Kansas City, for respondent.

CROSS, Judge.

This is an original proceeding in prohibition. The issue raised is whether the trial court exceeded its jurisdiction in consolidating two separate personal injury actions for trial. Both actions were brought by one Alberta Frances Beeler, hereinafter referred to as plaintiff, to recover damages for injuries she allegedly sustained in separate and successive automobile collisions.

The first collision occurred on October 20, 1962, in Andrew County at the intersection of U.S. Highways 71 and 275, where plaintiff had stopped behind a line of standing traffic. At that time and place relator Shirley Lee Allen drove an automobile into the rear of plaintiff's standing vehicle. On February 8, 1967, plaintiff commenced the first of her two actions by filing a petition naming relator Shirley Lee Allen as defendant, and alleging that she had sustained multiple permanent injuries described in her petition in pertinent part as follows:

'She suffered a whiplash-type of injury to her neck, * * * her left shoulder, * * * left hip, left knee, left ankle, left ileum, left foot and the heel and toes, * * * a traumatic bursitis of the left shoulder, * * * a hematoma over the crest of the ileum on the left; * * * (and) a severe and permanent shock to her entire nervous system. * * *'

On November 5, 1962, in the City of Savannah, plaintiff suffered the second accident when her automobile collided with an automobile driven by relator Norma Jane Tipton. On February 14, 1964, plaintiff filed suit against relator Norma Jane Tipton, claiming that she sustained injuries as a result of the accident last described, set out in her petition, in part, as follows:

'At the time of said accident plaintiff had not recovered from injuries suffered in a prior accident on October 20, 1962, wherein she had suffered a whiplash type injury to her neck and left shoulder and injuries to her left hip, left knee, left ankle, left ilium, left foot and left heel; a traumatic bursitis of her left shoulder and a hematoma over the crest of her left ilium and a shock to her nervous system.

'As the direct and proximate result of the negligence of defendant, Norma Jane Tipton, as aforesaid, plaintiff received the following severe, painful and permanent and lasting injuries and injurious consequences, to-wit: All of plaintiff's injuries and injurious consequences received in her prior accident, as set out in paragraph three (3) of this Petition, and incorporated at this point by reference, were aggravated, added to, reinjured, made worse and rendered more difficult to cure; * * *'

Thereafter, plaintiff (Alberta Frances Beeler) filed a joint motion in each of the two pending cases, praying the court's order to consolidate them for trial on grounds that the action involved common questions of law and fact 'as to the measure of plaintiff's damages and as to which injuries and damages were suffered by plaintiff and in which accident.' It was argued in the motion, 'that no party will be prejudiced by the consolidation and trial together of said actions, but that the consolidation and trial of said actions together will avoid unnecessary cost, expedite the trials, promote the convenience of the Court and the ends of justice.' At a hearing, on November 13, 1967, the trial court sustained the motion, consolidated the two causes as prayed, and set them for trial together before the same jury. ¹

Thereafter relators filed their petition praying this court to prohibit respondent from proceeding further in the premises and to order separation of the causes for trial. Pursuant thereto a preliminary rule in prohibition was issued by this court, to which respondent duly filed his return, admitting the essential allegations of fact contained in relators' petition. Briefs were filed by the parties and the cause was orally argued and submitted for determination.

It is contended on behalf of the respondent judge that he acted within his jurisdiction and under specific authority granted by Civil Rule 66.01(b), V.A.M.R. when, in the exercise of his discretion, he consolidated and ordered a joint trial of these two cases, 'involving common questions of law and fact' relating to the extent of plaintiff's injuries and aggravation thereof, and the amount of damages therefor that should be attributed to each of the respective casualties giving rise to the actions. Civil Rule 66.01(b) provides:

'(b) Consolidation--Common Question of Law Or Fact. 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.'

It is further argued on respondent's behalf that his determination of the motion to consolidate involved a matter of judicial discretion that is not subject to restraint unless shown to be arbitrary, capricious or unrestrained, and that no showing of that nature has been made.

The only point relators urge in their brief is quoted in full as follows: 'The Honorable John M. Yeaman, Judge, Exceeded His Jurisdictional Authority When he Consolidated the Cases of Alberta Frances Beeler v. Shirley Lee Allen and Alberta Frances Beeler v. Norma Jane Tipton for Trial at the Same Time and Before the Same Jury for the Reason that These Two Cases Do Not Arise Out of the Same Series of Occurrences and Do Not Present Common Questions of Law or Fact.'

It is relators' position that Rule 66.01(b) is circumscribed and limited by other rules of civil procedure which allow joinder of multiple claims and parties at the instance of the parties themselves, to-wit: Civil Rules 55.07 and 52.05. Civil Rule 55.07 provides, in part, as follows: 'The plaintiff in his petition or in a reply setting forth a counterclaim and the defendant in an answer setting forth a counterclaim may join either as independent or as alternate claims as many claims either legal or equitable or both as he may have against an opposing party. There may be a like joinder of claims where there are multiple parties if the requirements of Rules 52.04, 52.05 and 52.07 are satisfied. * * *.' Rule 52.05 provides in pertinent part as follows: '* * * 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. * * *' (Emphasis supplied.) Relators specifically contend that 'the meaning and intent of Rule 66.01 (authorizing consolidation by the court in its discretion) must be interpreted in light of the provision of Rule 52.05 (permitting a plaintiff to join multiple defendants originally in one action).' Therefore, relators argue, consolidation of the two cases by the court in the present instance is unauthorized because the two separately alleged causes of plaintiff's injuries admittedly did not arise 'out of the same transaction, occurrence or series of transactions or occurrences' inasmuch as the two separate automobile collisions occurred 15 days apart, at different places, and were entirely unrelated as to cause.

Thus, relators would have us interpolate as a provision of Civil Rule 66.01(b) the words 'in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences' although that language is not expressed in the rule. We do not believe that such a result was intended by the writers of the rule. We are convinced that if the Supreme Court had meant to so restrict the trial court's discretion to consolidate causes involving common questions of law or fact, an intention of such vital import would not have been left to implication but would have been expressed in clear terms. The language of Civil Rule 66.01(b) is plain and unambiguous and there is no reason to apply further canons of construction. We will not extend its effect beyond its clear and obvious meaning as relators contend we should do. Instead, we rule that the trial court's jurisdiction to consolidate actions, as conferred by Civil Rule 66.01(b), is not limited to causes arising out of the same transaction, occurrence or series of transactions or occurrences.

Missouri courts have not considered the precise questions that have been presented here. However, there is substantial authority found to support the trial court's action in the present instance. The leading case on the subject is Shacter v. Richter, 271 Minn. 87, 135 N.W.2d 66, decided in 1965 by the Supreme Court of Minnesota. That decision not only supports our own interpretation of Civil Rule 66.01(b), but also is well-reasoned authority that consolidation of actions by the trial court under conditions of law and fact existing in this proceeding is not an abuse of discretion. The facts and issues raised in Shacter are identical with those found in the case before us. There a plaintiff sustained injuries in two separate automobile accidents which occurred over three years apart. After filing separate suits for her damages, plaintiff filed a motion for consolidation supported by allegations that 'the injuries sustained in the second accident involved an aggravation of injuries sustained in the first accident.' The trial court sustained the motion and consolidated the actions...