Opinion
October 11, 1932.
January 25, 1933.
Negligence — Husband and wife — Injuries — Suit by husband and wife — Suit by husband for personal injuries — Settlement of suit by husband and wife — Trials C.P. — Consolidation of suits.
In an action of trespass against a gas company to recover damages for personal injuries sustained as a result of gas escaping from the defendant's pipes, the record disclosed that the plaintiff and his wife were both seriously injured by the escaping gas and that the plaintiff and his wife instituted suit against the gas company to recover for the personal injuries sustained by the wife and for the plaintiff's loss of her society, services, comfort and assistance and for medical expenses incurred in her behalf. Later the plaintiff instituted a second suit to recover for his own personal injuries. When the cases were called for trial the plaintiff's counsel moved that the two cases be consolidated but the trial judge overruled the motion after the defendant's counsel objected to the consolidation. The suit by the plaintiff and his wife proceeded to trial but during the progress thereof, a settlement of that case was agreed upon by the parties. The release executed by the plaintiff and his wife as well as the letter transmitting the release to the defendant clearly disclosed that the rights of the plaintiff in his individual suit were not to be affected. Later the plaintiff's case came on for trial and resulted in a verdict for him. The defendant in its motion for judgment non obstante veredicto alleged that only one suit should have been brought to cover all of the injuries sustained by the plaintiff and his wife, and that, a settlement having been made in the action first brought to trial, the plaintiff's individual action was thereby barred and rendered nugatory.
In such case, where the defendant objected to the plaintiff's effort to rectify the procedural error by consolidating the two suits, he is estopped from taking the position that the trial of the one suit barred the other and the order of the court below entering judgment on the verdict for the plaintiff and refusing defendant's motion for judgment non obstante veredicto will be affirmed.
Where a husband and wife receive personal injuries arising out of the same tort, the husband sustains two items or classes of damage, one being the damages which he sustained in connection with his wife's injuries, and the other the damages which he sustained from his own injuries. In such case he should combine the two items of damage in one suit in which he and his wife are the plaintiffs.
A litigant cannot object to a situation arising from a ruling made by a trial judge at his instance or because of his objections.
Practice C.P. — Actions of trespass — Husband and wife — Consolidation.
The effect of a consolidation of actions at law is to unite and merge all of the different actions consolidated into a single action, in the same manner as if the different causes of action involved had originally been joined in a single action.
Appeal No. 49, October T., 1932, by defendant from judgment of C.P., No. 2, Philadelphia County, March T., 1929, No. 15679, in the case of Josiah Reeves v. The Philadelphia Gas Works Company, a corporation.
Before TREXLER, P.J., KELLER, GAWTHROP, CUNNINGHAM, BALDRIGE, STADTFELD and PARKER, JJ. Affirmed.
Trespass to recover for personal injuries. Before STERN, P.J.
Verdict for plaintiff in the sum of $5,000, reduced under remittitur to $2,500. Defendant's motion for judgment, non obstante veredicto, denied and judgment entered on verdict. Defendant appealed.
From the record it appeared that on February 16, 1928, Josiah Reeves, plaintiff herein, and his wife, Bella Reeves, occupying the premises at No. 2639 South Hancock Street, Philadelphia, suffered serious personal injuries through the escape of gas from the pipes of defendant located in that street. In the latter part of the same month an action was instituted at No. 18556, December Term, 1927, in the court of common pleas No. 3, of Philadelphia County, under the caption: "Bella Reeves, by her next friend and husband, Josiah Reeves, and Josiah Reeves, in his own right, v. Philadelphia Gas Works Co., a corporation."
In the statement of claim damages were demanded by the wife for her personal injuries and those claimed by the husband were for the loss of her society, services, comfort and assistance and for medical expenses incurred in her behalf.
On May 20, 1929, the present action was brought to No. 15679, March Term, 1929, of the court of common pleas No. 2 of Philadelphia County. On December 30, 1930, the action in the names of husband and wife in common pleas No. 3 was transferred to common pleas No. 2. When the cases were reached for trial, counsel for the plaintiffs moved to consolidate, but counsel for defendant successfully objected. The trial of the transferred case was proceeded with and terminated in a settlement providing for the payment of damages in the sum of $3,750; a verdict was taken by agreement, the damages paid, and a release executed by plaintiffs releasing defendant from all damages for which suit was instituted at No. 18556, December Term, 1927, common pleas No. 3. It was mailed to counsel for defendant in a covering letter from counsel for plaintiffs.
When the present case was called for trial, September 28, 1931, counsel for defendant moved for a nonsuit upon the ground that the present plaintiff had already recovered damages in another action based upon the same alleged negligence of defendant. The trial judge directed that the record of the case which had been transferred and settled be incorporated in the record of this case and refused to enter a nonsuit. Defendant presented a point for binding instructions.
Upon receipt of notice of this appeal, STERN, P.J., pursuant to our Rule 58, filed, for the court below, the following opinion:
"The court having substantially reduced the verdict in this case, the only contention of the defendant which requires present discussion is that binding instructions should have been given for the defendant because of the circumstances in connection with the procedural history of this suit and another one which was brought in connection with the accident.
"The facts in that regard are that an accident occurred on February 16, 1928, in which Josiah Reeves and his wife, Bella Reeves, were both seriously injured. On February 23, 1928, an action was commenced in court of common pleas No. 3 in which the plaintiffs were Bella Reeves and Josiah Reeves, to recover damages for the injuries sustained by the wife and for the husband's damages in connection with the wife's case, that is to say for his outlays for her medical expenses and for the loss of her services and companionship. On May 20, 1929, Josiah Reeves brought the present suit in court of common pleas No. 2 for his own personal injuries sustained in the accident. The case in the court of common pleas No. 3 was non-suited on October 9, 1929, but another action of the same term and number was started on November 25, 1929, and transferred to the court of common pleas No. 2 on December 30, 1930. The situation thus created was that two suits were pending trial in the court of common pleas No. 2 — the present case, of the husband alone, being the one in which action was first brought (on May 1, [20] 1929, as aforesaid), and the other, that of the wife and husband jointly, having been re-started by action instituted on November 25, 1929, as aforesaid. On motion of the plaintiff's attorney the court, in the same order of December 30, 1930, in which it granted its consent to the transfer from the court of common pleas No. 3, also granted consent that the two cases should be placed on the list for trial on the same day so that they might be tried simultaneously, but when the day of trial arrived, the trial judge, upon representation of the defendant that it had not consented to said order nor been heard thereon, rescinded the court's previous consent to a simultaneous trial.
"When the cases were called for trial, on January 14, 1931, plaintiffs' counsel moved that the two cases be consolidated, to which counsel for the defendant objected, in reply to a question of the court apparently taking the position that to consolidate the two actions would tend to deprive the defendant of rights it would have in separate actions. The trial judge accordingly overruled the motion to consolidate and allowed the plaintiff an exception to such ruling. The plaintiff, with the consent of the court, thereupon proceeded with the action in which the husband and wife were both plaintiffs, but during the progress of the trial a settlement of that case was agreed upon by the parties, and a release was given to the defendant for damages caused by injuries sustained by the plaintiffs `for which we instituted suit in Common Pleas No. 3, December Term, 1929, [1927] No. 18556,' and in the letter which accompanied the delivery of the release to the defendant, counsel for the plaintiffs stated: `You understand, of course, that this release in no way affects the legal rights of Josiah Reeves in his action against the Philadelphia Gas Works Company. This is the condition under which the release was executed. I have ordered the case of Josiah Reeves against Philadelphia Gas Works Company, C.P. No. 2, March Term, 1929, No. 15679, listed for trial, so that it will most likely appear on the March trial list.'
"There can be therefore, no question but that both parties clearly understood that the settlement was only of the damages set forth in the joint action, and did not cover the husband's personal injuries for which he had instituted suit in his own name exclusively. Under this arrangement between the parties a verdict for defendant was taken and judgment thereon entered to effectuate the settlement.
"The present case, being the husband's own suit, came on subsequently for trial and resulted in a verdict for plaintiff. The defendant's present contention that binding instructions should have been given for the defendant, and, therefore, that its motion for judgment n.o.v. should be granted, rests upon the alleged ground that only one suit should have been brought to cover all of the injuries sustained by the plaintiffs, and that, a settlement having been made in the action first brought to trial, the other action was thereby barred and rendered nugatory.
"It is to be pointed out at the beginning that both the husband and wife were very seriously injured, and that if recovery for damages is to be limited to the sum paid the wife under an agreement expressly restricting the settlement to her case, a grave injustice will be perpetrated upon the present plaintiff, who undoubtedly is entitled to a substantial recovery for the injuries which he personally sustained, and for which, unless by the present verdict, he has received and will receive no compensation. It seems to the court that to uphold the defendant's contention under the facts here present would be a denial of justice and a degrading of legal procedure to the status of a mere game.
"There is no doubt that the proper method of procedure for the plaintiffs originally would have been to institute only one action, setting forth all their damages and claiming recovery therefor: Fields v. Phila. Rapid Transit Co., 273 Pa. 282; Hug v. Hall, 79 Pa. Super. 392; Frankel v. Quaker City Cab Co., 82 Pa. Super. 217.
"The reason for this principle is not one concerned particularly with the Act of May 8, 1895, P.L. 54, which compels a husband and wife to bring a single suit to recover their damages for injuries inflicted upon the person of the wife, because as a matter of fact the husband and wife in the present litigation did bring such a single action to recover their damages arising out of the injuries inflicted upon the person of the wife. The point here involved arises rather from the fact that the husband sustained two items or classes of damage, one being the damages which he sustained in connection with his wife's injuries, and the other the damages which he sustained from his own injuries, and, under the authorities quoted, he should have combined these two items of damage in one action, and since, under the Act of 1895, the one item of injuries necessitated his joining with his wife, all his damages of whatever nature should have been set forth and claimed in the suit in which he and his wife were the plaintiffs.
"There is no doubt, therefore, but that the plaintiff made a procedural mistake in claiming part of his damages in one suit and the rest of his damages in another. However, he properly tried to rectify this error, which he could have done in either of two ways: to amend the statement of claim in the one suit and discontinue the other, or to consolidate the two actions so that all of the damages claimed in each would be combined in one suit arising from the merger or consolidation of the two existing actions.
"A consolidation of actions is something quite different from the simultaneous trial of several actions. As stated in 1 C.J. 1121, § 308: `an actual consolidation involves the union of several actions into one which is tried as such, while where several actions are tried together, although there is but one trial, the identity of the actions is preserved and separate verdicts and judgments rendered.
"In other words, a consolidation of actions does not mean a mere consolidation of trials. It is also stated in 1 C.J. 1130-1131, § 332, that: `Different actions ex delicto may in some cases properly be consolidated, as in the case of different actions against the same defendant, arising out of the same tort, whether in such a case they are for different personal injuries, or one is for an injury to the person and the other for an injury to property.'
"In support of this proposition are cited several cases holding that an action by a husband for an injury to himself may be consolidated with a separate action by him and his wife for an injury to the latter at the same time and place — which is exactly the case before us. It is further to be noted that: `The effect of a consolidation of actions at law is to unite and merge all of the different actions consolidated into a single action, in the same manner as if the different causes of action involved had originally been joined in a single action.' 1 C.J. 1135, § 349.
"It would seem, therefore, that the plaintiff, by seeking to have the two actions consolidated clearly had a right to correct the mistake which he had made in practice. The fact that at the time such motion was made on January 14, 1931, the statute of limitations would have barred a new action is wholly immaterial, because the cause of action and the damages resulting therefrom to both the husband and the wife were all of record in the two suits which had been brought, and the consolidation was not aimed to establish on the record in the litigation a new cause of action or new damages, but simply as a procedural matter to coalesce or combine the two existing suits and their respective statements of claim into one. (See in this connection Madara v. Railway Co., 192 Pa. 542.)
"If, then, the plaintiffs were entitled to a consolidation of their actions, but the defendant objected, and because of such objection the court overruled the motion for consolidation, certainly the defendant is now estopped to take the position that there are two actions whereas there should have been only one and that the trial of the one barred the other. A case in point is Rockwell v. Traction Co., 187 Pa. 568 (p. 572).
"Indeed it is elementary that a litigant cannot blow hot and cold; he cannot object to a situation arising from a ruling made by a trial judge at his instance or because of his objections: Pantall v. Coal Iron Co., 204 Pa. 158; Citizens' Gas Co. v. Whitney, 232 Pa. 592; Buehler v. Phila. Reading Rwy. Co., 280 Pa. 92; Benjamin v. Holgate, 51 Pa. Super. 104.
"The defendant contends that because a verdict was taken in the suit of the husband and wife it acts as res adjudicata in the present suit of the husband. For the reasons already set forth, however, it is obvious that this is not true, for it was only because of the position taken by the defendant that the plaintiff's damages were tried in two suits instead of one, whereas this procedural mistake could and would have been corrected and the whole trouble avoided if the defendant had not insisted to the contrary. Moreover, a verdict rendered as a mere matter of form in pursuance of an agreement of settlement has no greater conclusiveness than the settlement itself, it being always permissible and indeed necessary to look back of an agreed verdict to see to what extent there was any adjudication of the controversy by reason of a trial on the merits.
"That the defendant should assume its present position is all the more remarkable in view of the fact that the documents conclusively show that all that was settled in the one suit was the damage specified in the statement of claim in that action, and this limitation was made as express and as clear as language would permit. Surely if the defendant intended to rest upon its present contention it was its duty to take that position when the settlement was made and the release and accompanying letter were given, for otherwise the defendant would have been deliberately luring the plaintiff into a trap. It is true that the trial judge refused to admit the release and the accompanying letter into evidence when offered by counsel for the plaintiff, but even if the court was correct in such ruling, since the defendant now contends that the settlement and verdict worked a conclusive adjudication, the plaintiff is certainly entitled to show the actual extent of the settlement made and that it was expressly restricted so as not to bar the present right of recovery. That a partial settlement can be made in such manner is instanced by the case of Frankel v. Quaker City Cab Co., 82 Pa. Super. 217.
"For the reasons thus indicated the court overruled the defendant's motion for judgment n.o.v."
Error assigned, were refusal of binding instructions for defendant, denial of its motion for judgment n.o.v. and entering judgment on the verdict.
W. Heyward Myers, Jr., and with him Francis B. Bracken, for appellant.
Emanuel W. Beloff, for appellee.
Argued October 11, 1932.
The judgment is affirmed upon the opinion of the learned president judge of the court below.