Watts v. Smith

Smith, J.

This is a pleading case in which a misjoinder of parties defendant and of causes of action was ruled by the trial court. The court held, in applying GCR 1963, 206, that “joinder would not aid the convenient administration of justice.” Before issue was joined, an order dismissing defendant Smith as a party was entered.

The facts are simple: plaintiff was a passenger in a car which was struck from the rear twice in one day — once while plaintiff and his driver were en route to work in the early morning and the second time in the afternoon while they were returning from work. Defendant Havers is allegedly responsible in law for the morning collision and Smith the one in the afternoon. Plaintiff asserts in his declaration and bill of particulars filed December 31, 1962, that after the morning collision he “felt a generalized pain in his head and back,” but continued to work. Ho says he worked a full 8-hour day “with pain in his back, headache, and a feeling of fatigue,” After *124the afternoon, collision which was more violent, plaintiff went home “with pain in his neck and back.” The next day, he went to work, despite the pain, bnt in less than an hour went to the “plant hospital which rendered first aid.” He completed his workday but 2 days later went to a hospital where he was treated, X-rayed and released. Several days later he returned to work but was unable to continue.

In his declaration filed December 31, 1962, plaintiff asserts “That the defendants herein are liable for the personal injuries and damages to your plaintiff by reason of their negligence on February 26, 1962. Both collisions causing the following injuries.” (Emphasis added.)

Plaintiff argues here, as he did below, that he “will suffer an irreparable injustice if these causes are separated and would put the plaintiff, the innocent party, in a position where he would be required to prosecute separate suits, where the defense of each could be the uncertainty of the injuries.”

GCE 1963, 206.1, as to permissive joinder of parties, reads in part as follows:

“All persons may be joined in 1 action as defendants
(1) 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; or
“(2) if it appears that their presence in the action will promote the convenient administration of justice.”

Accepting the allegations of plaintiff’s declaration as true, that is, he suffered a single indivisible injury as a result of successive negligent acts of defendants, we conclude that plaintiff had a right to maintain his *125action against both defendant Smith and defendant Havers in the same suit. The order dismissing should, therefore, be reversed.

The rule applicable to this case is stated in Meier v. Holt, 347 Mich 430, at pages 438, 439:

“ ‘Although it is not always definitely so stated the rule seems to have become generally established that, although there is no concert of action between tortfeasors, if the cumulative effect of their acts is a single, indivisible injury, which it cannot certainly be said would have resulted but for the concurrence of such acts, the actors are to be held liable as joint tort-feasors; whereas, if the results, as well as the acts, are separable, in theory at least, so that it can be said that the act of each would have resulted in some injury, however difficult it may be as a practical matter to establish the exact proportion of injury caused thereby, each can be held liable only for so much of the injury as was caused by his act.’ (1 Cooley on Torts [4th ed], § 86, pp 279, 280.)”

If after further proceedings before trial, it should appear necessary to prevent prejudice, or if it should appear to be in furtherance of the convenient administration of justice, the trial court may, within its sound discretion, order separate trials as permitted in GrCR 1963, 505.2, or sequential treatment of issues as provided in GCR 1963, 509.3. Otherwise, the matter may proceed to joint trial under proper instructions embodying the rule in Meier and predecessor cases. If deadlock should develop over apportionment of damages, it would then be incumbent upon the trial court to consider the language of Maddux v. Donaldson, 362 Mich 425 (100 ALR2d 1), beginning at page 432:

■ “But if, on the other hand, the triers of the facts conclude that they cannot reasonably make the division of liability between the tort-feasors, this is the *126point where the road of authority divides.” See the suggested answer at p 436.

Reversed and remanded for further proceedings. Costs to plaintiff.

T. M. Kavanagh, C. J., and Souris, O’Hara, and Adams, JJ., concurred with Smith, J.