Frances D. KANOY
v.
Emory Ray HINSHAW and Security Mills of Greensboro, Inc.
Connie Reid KANOY, by his Next Friend, Francis V. Kanoy,
v.
Emory Ray HINSHAW and Security Mills of Greensboro, Inc.
No. 450.
Supreme Court of North Carolina.
April 10, 1968.*300 W. H. Steed, Thomasville, and Walser, Brinkley, Walser & McGirt, Lexington, for plaintiffs.
Sapp & Sapp and Rollins & Rollins, Greensboro, for defendants.
BRANCH, Justice.
Plaintiffs assign as error the trial court's action in consolidating the two cases for trial. This assignment of error is based on an exception duly taken. Fleming v. Holleman, 190 N.C. 449, 130 S.E. 171.
Appellants rely on the language contained in the case of Dixon v. Brockwell, 227 N.C. 567, 42 S.E.2d 680, where Winborne, J., (later C. J.) stated:
"It is appropriate to say that consideration of this appeal leads to the conclusion that it would be better to try the actions brought by these plaintiffs, passengers in the Frank N. Martin car, separately from the action brought by Frank N. Martin. This is so even though these plaintiffs make no allegation of negligence against Frank N. Martin. They elect to allege a cause of action for actionable negligence only against the defendant, and may recover only if they make good on these allegagations, even if Frank N. Martin were negligent also, and that his negligence were a proximate cause of, and concurred in bringing about the collision in question. Hence the issue in their actions is one of negligence of defendant, and proximate cause, and concurring negligence of Frank N. Martin has no place in the trial of their causes. While, on the other hand, in the Frank N. Martin case, there are issues of negligence and contributory negligence which require appropriate instructions."
The trial court possesses the power to order consolidation of actions for trial when the actions involve the same parties and the same subject matter, if no prejudice or harmful complications will result therefrom. This power is vested in the trial judge so as to avoid multiplicity of suits, unnecessary costs, delays, and to afford protection from oppression and abuse. To sustain an exception to the court's discretionary consolidation of the actions, injury or prejudice to the appealing party arising from such consolidation must be shown. Peeples v. Seaboard Air Line R. R., 228 N.C. 590, 46 S.E.2d 649.
In the case of Davis v. Jessup, 257 N.C. 215, 125 S.E.2d 440, Denny, C. J., speaking for the Court, stated:
"The plaintiffs' first assignment of error is to the consolidation of these actions for trial. The trial court possesses the discretionary power in proper cases to order the consolidation of actions for trial. Mcintosh, North Carolina Practice and Procedure, 2nd Ed., Vol. I, Section 1342; Peeples v. Seaboard Air Line R. R. Co., 228 N.C. 590, 46 S.E.2d 649, and cited cases. Moreover, when the consolidation of actions for the purpose of trial is assigned as error, the appellant must show injury or prejudice arising therefrom. Here, both actions grew out of the same accident, and in essence the complaints are identical, and so are the answers. The same defenses are interposed, the plaintiffs used the same witnesses, and the evidence was the same except on the question of damages. Both actions were against the same defendant, and both plaintiffs were represented by the same attorneys. Furthermore, it has not been shown on this record that the appellants were injured or prejudiced by the order of consolidation. This assignment of error is overruled."
It should be noted that the Davis v. Jessup case differs from the instant case in that the issue of contributory negligence was submitted as to both plaintiffs and there was no counterclaim against either of the plaintiffs.
Robinson v. Standard Transportation Co., 214 N.C. 489, 199 S.E. 725, is a case in which the driver of an automobile and *301 four of his guest passengers brought separate actions against the same defendants, in which each plaintiff sought recovery for personal injuries, and one plaintiff, in addition, sought recovery for property damage. The original record shows that an issue of contributory negligence was submitted as to one plaintiff only. The Court, holding that there was no error in the consolidation of these cases for trial, stated:
"(1) The exception to consolidation of the cases for the purpose of trial is without merit. In this State the power of the trial court to consolidate cases for convenience of trial is not confined to cases between the same parties, but extends to cases by the same plaintiff against several defendants and cases by different plaintiffs against the same defendant, where the causes of action grow out of the same transaction and the defense is the same. Abbitt v. Gregory, 201 N.C. 577, 593, 594, 160 S.E. 896; Mcintosh, Practice and Procedure, 536, 539. The liability of the defendants, if any, to the several plaintiffs in this action grew out of the same alleged negligent acts and the defense is the same. There is no apparent prejudice to the defendants in the consolidation of these actions which might interfere with the discretion of the court in making the order."
In analyzing Robinson v. Standard Transportation Co., supra, we conclude that the court reasoned that "the defenses were the same" in the sense that no confusion would result in the trial from the consolidation since defendants relied on the same negligent acts of the plaintiff driver as their defense in their plea of contributory negligence and in their contention that the sole negligence of the same driver barred recovery by the other plaintiffs.
An examination of the case law of other jurisdictions indicates a strong trend towards approval of consolidation in actions for injuries whenever possible, on the premise that, generally, the applicable rules of law are not complicated and may be explained to the modern jury so that it may understand and apply the legal rules to the factual situation. See 68 A.L.R.2d 1372, for an exhaustive note on Consolidation Actions for Injuries.
In this connection we observe it is the rule in this jurisdiction that when cases are consolidated for trial, although it becomes necessary to make only one record, the cases remain separate suits and retain their distinctiveness throughout the trial and appellate proceedings. Pack v. Newman, 232 N.C. 397, 61 S.E.2d 90; Horton v. Perry, 229 N.C. 319, 49 S.E.2d 734.
Here, the court submitted separate issues as to both cases and the written issues were in the possession of the jury during its deliberations. Any contention that confusion resulted from consolidation of the actions because of the submission of the defense of contributory negligence and the inclusion of a counterclaim against the plaintiff driver is further dispelled by the fact that the jury considered only the first and fourth issues in the Frances D. Kanoy case and only the first issue in Connie Reid Kanoy case. The actions grew out of the same accident, the same evidence was related by the same witnesses (except as to damages), both defendants relied on the same acts of negligence of the plaintiff Frances D. Kanoy to sustain their defense of contributory negligence and their defense that the sole negligence of Frances D. Kanoy caused the injuries received by the passenger Connie Reid Kanoy. Plaintiffs brought forward no assignment of error as to the admission or exclusion of evidence or as to any other specific ruling of the court which they contended was caused by consolidation of the actions for trial.
The record in the instant case does not reveal apparent prejudice to either plaintiff which justifies interference with the court's discretionary order of consolidation. *302 We do wish to stress, however, that in considering consolidation of actions for trial, the trial court should carefully weigh the possibilities of confusion, misunderstanding or prejudice to the parties which might arise from such consolidation.
Plaintiffs assign as error comments of the trial judge made in the presence of the jury as being prejudicial in expressing an opinion as to the evidence.
The court, in explanation of his ruling on the admissibility of evidence, stated in the presence of the jury:
"The position of the body and truck has nothing to do with the wreck; in other words, you are alleging a faulty truck but it has nothing to do with the cause of the wreck, what happened after is another matter, what caused the wreckwhether bolted on solid or not; there is no evidence that had anything to do with the wreck.
How the body is constructed has nothing to do with whether it caused the wreck or didn't.
If the feed came off or tilted sideways and caused him to lose control of the truck, it would be different; there is no evidence the body had anything to do with causing the collision, how it was attached to the truck or what that's not material; the fact that it hit the car if it did is material but how it is bolted on has nothing to do with whether the wreck was caused by it or not. The evidence will tend to show it came loose after the collision; that has nothing to do with whether it caused the collisionthat's another matter."
On three or four other occasions he made statements of like import.
Proximate cause is that cause which produces the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all of the facts then existing. Jenkins v. Leftwich Electric Co., 254 N.C. 553, 119 S.E.2d 767.
It is well recognized in this jurisdiction that a litigant has a right by law to have his cause tried before an impartial judge without any expressions from the trial judge which would intimate an opinion by him as to weight, importance or effect of the evidence. Upchurch v. Hudson Funeral Home, 263 N.C. 560, 140 S.E.2d 17. However, this prohibition applies only to an expression of opinion related to facts which are pertinent to the issues to be decided by the jury, and it is incumbent upon the appellant to show that the expression of opinion was prejudicial to him. McDonald v. MacArthur Bros. Co., 154 N.C. 11, 69 S.E. 684. See also Upchurch v. Hudson Funeral Home, supra.
The lengthy comments by the trial judge were unnecessary. However, there was no evidence that the manner in which the truck body was attached to the chassis caused the collision. The statements made by the court were obviously true and did not express an opinion as to facts pertinent to the issues being considered by the jury so as to be prejudicial to plaintiffs. This assignment of error is overruled.
Plaintiffs contend that there was error in the time when and manner in which the trial judge submitted the case to the jury. In this connection the record shows the following:
"After the Jury deliberated for some time, it now being 7:40 P. M., the following ensued:
COURT: Members of the jury, have you agreed on a verdict?
JURY: No.
COURT: Do you want to come back tonight and still deliberate?
JURY: Yes.
*303 COURT: Do you want to go out or do you want something brought in?
JURY: Any way is all right.
COURT: Can we send out for something?
(JURY: If we don't agree, how long long do we have to stay?
COURT: You have to stay until you indicate to the Court that you are hopelessly deadlocked. A verdict of the Jury is a unanimous verdict of 12 people reasoning together and not a verdict of six or eleven, but a verdict of twelve reasoning together and unanimous. If you can't reach a verdict, it will be necessary for the Court to withdraw a juror and declare a mistrial and try these cases all over again; the next Jury will have about the same evidence and same law and won't be any more intelligent than you are and it will have to be done all over again.)
Plaintiffs except to above portions of the charge in parentheses.
JURY: I would like to ask for one part of the testimony not saying which one certain part
COURT: I charged you at the time and again charge you that it is your responsibility to remember all the evidence and weigh it as you recall it in arriving at your verdict whether the Court calls it to your attention or not and take your recollection; that is your responsibility. I can't have it read to you as she is not under oath; the evidence was presented to you under oath by the witnesses; you will have to take it as you recall it.
I summarized in effect what the testimony was; what the testimony was, it's for you the jury, and that is your province and nobody can invade it; what you say the facts are stands and nobody can reverse it and nobody can question it. Do you want to go eat and come back, or do you want us to send out and get something for you while you deliberate further ?
(NOTE: Jury given supper recess until 8:30 P. M. and given the usual cautions.)"
When the jury returned, the court then gave further instructions on the issues and the order in which the jury should answer them.
In re Will of Hall, 252 N.C. 70, 113 S.E. 2d 1, contains the following pertinent statements:
"`The trial judges have no right to coerce verdicts, or in any manner, either directly or indirectly, intimidate a jury.' Trantham v. Elk Furniture Co., 194 N.C. 615, 616, 140 S.E. 300 * * *. `The law anticipates a verdict in every case after the jury have had a reasonable time for consideration.' Osborne v. Wilkes, 108 N.C. 651, 666, 13 S.E. 285 * * *. Certainly it is not error for the trial court to remind the jury of the gravity and importance of their position and the duty imposed on them to discuss and consider the evidence with deliberation, compose their differences and return a verdict if they can conscientiously do so."
Without indicating any opinion as to the weight of the evidence or what the verdict should be, the trial judge courteously and considerately reminded the jury of its duty and of the result if it failed to reach a unanimous verdict. The record fails to show that the verdict was coerced or that the jury was intimidated by the actions or words of the trial judge.
Further, upon reading the charge as a whole, it appears that the trial judge so explained the law applicable to the facts of the case that we are unable to find any reasonable ground to believe that the jury was misled or misinformed. Phillips v. North Carolina R. R., 257 N.C. 239, 125 S.E.2d 603.
*304 Plaintiff appellants have failed to carry the burden of showing sufficient prejudicial error to warrant a new trial.
APPEAL BY SECURITY MILLS OF GREENSBORO, INC.
Defendant Security Mills of Greensboro, Inc., assigns as error the failure of the trial court to apply the law, as set out in G.S. § 20-154 and G.S. § 20-141, to the facts on this case.
These statutes, in pertinent part, provide:
G.S. § 20-154: "The driver of any vehicle upon a highway before starting, stopping or turning from a direct line shall first see that such movement can be made in safety, * * *."
G.S. § 20-141(a): "No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing."
G.S. § 20-141(c): "The fact that the speed of a vehicle is lower than the foregoing limits shall not relieve the driver from the duty to decrease speed when approaching and crossing an intersection * * * or when special hazards exist with respect to pedestrians or other traffic * * * and speed shall be decreased as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway, and to avoid causing injury to any person or property either on or off the highway, in compliance with legal requirements and the duty of all persons to use due care."
G.S. § 20-158 not only requires the driver on a servient highway to stop, but such driver is further required to exercise due care to see that he may enter or cross the dominant highway or street in safety before entering thereon. Jordan v. Blackwelder, 250 N.C. 189, 108 S.E.2d 429. The court's interpretation of G.S. § 20-158 incorporates the requirements contained in G.S. § 20-154, that the motorist must see "that such movement can be made in safety," and under the factual situation here presented, an instruction as to G.S. § 20-154 is unnecessary. Here the court charged as to G.S. § 20-158 and applied the law contained therein to the facts of instant case.
Further, the theory of defendant's counterclaim is so clearly based on provisions of G.S. § 20-158 that prejudicial error is not shown by failure to charge on G.S. § 20-141 in relation to the fourth issue. Defendant Security Mills of Greensboro, Inc., has failed to show prejudicial error on its appeal.
As to appeal of plaintiffs: No Error.
As to appeal of defendant Security Mills of Greensboro, Inc.: No Error.
BOBBITT, Justice (concurring in part and dissenting in part).
In my opinion, the order of consolidation did not prejudice plaintiff Frances D. Kanoy. In her case, I agree the verdict and judgment should stand.
In my opinion, the minor plaintiff, Connie Reid Kanoy, was prejudiced by the order of consolidation, particularly so in view of the fact the court did not give positive instructions to the effect the negligence issue in his case should be answered, "Yes," if the jury found that the collision and his injuries were caused by the joint and concurrent negligence of Frances D. Kanoy and of defendants. In Connie Reid Kanoy's case, my vote is for a new trial.
SHARP and HUSKINS, JJ, join in this opinion.