Tuttle v. Everhot Heater Co.

• Decision Date: 29 June 1933
• Docket Number: No. 120.,120.
• Parties: TUTTLE et ux. v. EVERHOT HEATER CO. et al.
• Court: Michigan Supreme Court

264 Mich. 60

249 N.W. 467

TUTTLE et ux.

v.EVERHOT HEATER CO. et al.

No. 120.

Supreme Court of Michigan.

June 29, 1933.

Appeal from Circuit Court, Wayne County; Glenn E. Warner, Judge.

Action by Harris B. Tuttle and his wife severally and jointly against the Everhot Heater Company and another. From an order dismissing the joint suit, plaintiffs appeal, and, from an order allowing individual suits, defendants cross-appeal.

Judgment of dismissal of joint suit reversed, and judgment allowing individual suits affirmed.

Argued before the Entire Bench.

Edward N. Barnard, of Detroit, for appellants.

Warren, Hill & Hamblen, of Detroit (Charles E. Lewis and Austin Fleming, both of Detroit, of counsel), for appellees.

McDONALD, Chief Justice.

Harris B. Tuttle and Olive Tuttle are husband and wife. At the time the cause of action arose they were residing in Rochester, N. Y., in a home the title to which they held by the entireties. Their household goods were owned jointly. An automatic gas heater manufactured and sold by the defendants was installed in their home. Early one morning the heater exploded, damaging the building and furniture and seriously injuring Mrs. Tuttle. On the theory that the heater was negligently constructed and functioned improperly, they brought three suits in the Wayne county circuit court to recover their damages. Mrs. Tuttle brought suit to recover for her personal injuries. Mr. Tuttle brought suit to recover for medical services to his wife and for loss of her services; and both joined in a suit to recover damages to the building and the furniture.

The defendants filed a motion to dismiss each of these three suits on the ground that damages to the real and personal property for which the third suit was brought can be recovered in the other two suits; that Olive Tuttle has a single cause of action for property damages and personal injuries; that Harris B. Tuttle has a single cause of action for property damages and loss of services of his wife; that the third or joint suit was unnecessary, and is a violation of the law as to splitting causes of action, and therefore should be dismissed. The motion to dismiss the other suits is based on the claim that they were started simultaneously, and therefore mutually abate each other.

The circuit judge found that the suits were not started simultaneously, and refused to dismiss the individual suits, but dismissed the joint suit on the ground that it split the causes of action.

The plaintiffs appealed from the judgment entered. The defendants cross-appealed in this suit against that part of the court's order whereby it was found that the third suit was not begun simultaneously with the other two suits.

The damages which the plaintiffs seek to recover in these suits arose out of a single tort. The question is, Did it give rise to a single cause of action or to two causes of action? If the cause of action is single, it cannot be split and made the subject of several suits. If, as plaintiffs claim, they have two causes of action growing out of the tort, one for injury to the person and the other for injury to property, the joint suit can be maintained without splitting a cause of action. Their rights in this respect are governed by the laws of New York where the property damaged is located. Under the...