Oakwood Homeowners Ass'n v. Ford Motor Co.

D. C. Riley, J.

On July 31, 1972, the Oakwood Homeowners Association along with 20 named, individual plaintiffs instituted this air pollution suit as a class action against four corporate defendants. The class consists of the association’s members as well as other persons similarly situated, all of whom reside within a rectangularly shaped, eight-block area, slightly less than a square mile in size. The area is described as "both sides of Oakwood Avenue, bounded by Schaefer Highway, Dix Road, South Fort Street and the Rouge River”.

The defendants, Ford Motor Company, Marathon Oil Company, Edward Levy Company and International Salt Company, each operate separate industrial facilities in southwest Detroit and western Wayne County within close proximity to plaintiffs’ neighborhood. Defendant Ford manufactures automobiles and other products at its "River Rouge Complex” located in Dearborn; defendant Marathon maintains a petroleum refinery near the intersection of South Fort Street and Schaefer Highway in Detroit; defendant Levy operates a *203lime processing plant known as the Detroit Lime Company, located on Mellon Street in Detroit near Dix Road and the Rouge River; and defendant International Salt engages in the extraction, proc.essing, storage and transportation of salt from its "Detroit Mine” located near Oakwood Avenue and Dumfries Street. Besides the defendants, other industries and public utilities operate facilities near the described area.

In a three-count complaint plaintiffs seek declaratory and injunctive relief pursuant to the Michigan Environmental Protection Act, MCLA 691.1201 et seq.; MSA 14.528(201) et seq., (Count I); individual damages against the four defendants, jointly and severally, for common law private nuisance created by air pollution (Count II); and joint punitive damages against the defendants in separate amounts totaling $2.18 million (Count III). Basically, plaintiffs’ complaint alleges that defendants have concurrently emitted and continue to emit into the atmosphere noxious aerosols, gases and particulate matter of sufficient volume and regularity to befoul the air, damage plaintiffs’ property and endanger the health of some class members.

In July, 1975, after receiving 47 sets of interrogatory answers covering 72 individual claimants, defendants renewed their prior, unsuccessful efforts to dismiss plaintiffs’ complaint. Specifically, the defendants by way of motion argued: (1) the impropriety, under GCR 1963, 208, of class-action status with regard to Counts II and III; (2) the misjoinder of plaintiffs and defendants, GCR 1963, 207; and (3) the need for separate trials under which each plaintiff would be required individually to sue each defendant apart from the others.

In an opinion of August 18, 1975, exhaustively *204reviewing applicable law, the lower court affirmed its denial of defendants’ earlier motions, denied defendants’ motion for separate trials and expressly held:

"This court is of the opinion that the allegations in the instant complaint and the very nature of this action make out a class action under the Michigan court rule 208.1. The use of a class action as a procedural device in this case will achieve economies of time, effort and expense and promote uniformity of decision as to persons similarly situated.
"Common questions of law, which comprise the main thrust of this litigation, are found to exist and to predominate over individual issues. The question of liability of all of the defendants, as alleged in * * * the complaint, is a common question of law. Did the four defendants violate the laws of Michigan and thereby cause damages to plaintiffs by the discharge into the air of certain gases and particulate matters?
"The determination of this liability is a common question of law as to all parties concerned. This common liability issue is not such a situation which would require a class member to litigate 'numerous and substantial questions to determine his individual right to recover subsequent to the rendering of any class judgment.’ A trial on the merits can determine liability on the part of all or none or some of the defendants. Once the liability issue is determined, the mechanics of proving individual damages, if such is necessary, can follow established procedures of claim verification. See Comment, Manageability of Notice and Damage Calculation in Consumer Class Actions, 70 Mich LR 338 (1971).”

On October 20, 1975, the lower court denied rehearing of defendants’ motions, reiterating its previous holding. In response, defendants sought and secured leave to appeal the rulings of the trial judge before this Court.

We preface our analysis of defendants’ appellate *205claims with a brief review of additional facts culled from plaintiffs’ answers to defendants’ interrogatories. These documents disclose that by far the great majority of plaintiffs allege damage to their homes or adjacent structures and to vegetation on their property. While some plaintiffs are specific in describing the offending effluent, many others point to multiple emmissions and still others are silent on the precise cause of the alleged pitting, corrosion and dust. In addition, some plaintiffs charge defendants with damaging their health; and others do not. A few assert noise and vibration damage; but most do not. Moreover, as would be expected, some class members are longtime residents of the neighborhood, while others are more recent arrivals. In essence, then, plaintiffs are a heterogeneous lot, whose common tie is geographical (in that they together endure the alleged discharges from defendants’ concurrent operations), and whose damages are different in degree, and to a limited extent, in kind.

On appeal, defendants contend that the present suit may not be maintained in its present posture either under the class action rule, GCR 1963, 208, or under the permissive joinder rule, GCR 1963, 206. They argue that, given the diversity of plaintiffs and defendants, the varying nature of the claims and damages, and the complexity of the case, no single jury could fairly weigh the liability, if any, of each defendant and accurately assess the damages, if any, flowing to the numerous claimants, without inevitably prejudicing defendants’ due process rights. Accordingly, defendants seek severance of Count I, the claim for injunction; separate trials as to each defendant on Count I; and, alternatively, dismissal of plaintiffs’ claims for damages on grounds of unmanageability, or, *206severance and separate trials of each named plaintiffs claim for damages against each defendant.

Plaintiffs initiated this suit under the so-called "spurious” class action rule of GCR 208.1(3), which provides in germane part:

".1 Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, 1 or more, as will fairly insure the adequate representation of all may on behalf of all sue or be sued when the character of the right sought to be enforced for or against the class is
"(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.”

With regard to the numerosity of plaintiffs, the adequacy of representation and the sufficiency of notice to potential claimants, defendants apparently do not challenge plaintiffs’ status as a class; rather, defendants maintain that the questions of law and fact common to all plaintiffs are eclipsed by legal and factual issues peculiar to individual plaintiffs. In other words, the common questions do not predominate, as required by the following language from Northview Construction Co v St Clair Shores, 395 Mich 497, 509; 236 NW2d 396 (1975):

"Under GCR 1963, 208.1(3), a claim is typical when it is based on a 'common question of law or fact * * * and a common relief is sought’. The claims need not be identical in such matters as the individual amount of damages, Foster v Detroit, 254 F Supp 655, 667-669 (ED Mich, 1966), aff'd 405 F2d 138 (CA 6, 1968); Oppenheimer v F J Young & Co, 144 F2d 387, 390 (CA 2, 1944), so long as common issues predominate and a judicial economy will be realized through the class *207action procedure. Partain v First National Bank of Montgomery, 59 FRD 56 (MD Ala, 1973).”

Not only defendants, but the lower court and plaintiffs’ counsel as well, have viewed the predominance of common legal and factual questions as the prime area of focus. In this regard, we disagree.

We believe that class action practice under Michigan law contains no requirement that common class questions predominate over issues unique to individual plaintiffs. Admittedly, Northview, supra, carries language pointing to the opposite conclusion, but that case does not control for two reasons.

First, the opinion of the Court in Northview has lost its mooring in precedent. See Northview Construction Co v St Clair Shores (On Rehearing), 399 Mich 184; 249 NW2d 290 (1976), where an equally divided Supreme Court affirmed this Court’s rendition of the Northview litigation. 44 Mich App 614; 205 NW2d 895 (1973). Second, the Supreme Court’s earlier version of Northview, quoted above, cited Partain v First National Bank of Montgomery, 59 FRD 56 (MD Ala, 1973), as enunciating the requirement of predominance. Partain, however, interpreted FR Civ P 23(b)(3), as amended in 1966, which expressly requires the predominance of common over uncommon class issues. In contrast, GCR 208.1(3), as cloned from former FR Civ P 23(a)(3), requires (in addition to a request for common class relief) the presence of "a common question of law or fact affecting the several rights”. (Emphasis added.)

As this Court has indicated:

" 'The "spurious” class action under [former] Rule 23(a)(3) involves the enforcement of rights which are *208several where there is a common question of law or fact and a common relief is sought. The spurious class suit is merely a permissive joinder device in which the right and the liability of each individual plaintiff are distinct. The class is formed solely by the presence of a common question of law or fact, and there is no jural relationship among the members of the class. It is an anomaly because it does not involve a recognizable class. The real justification for the spurious type of action is its convenience in litigating numerous individual claims in one action. It is really an invitation to all persons similarly situated to join the action and litigate their several claims, but except to the extent that common claims are litigated, it has no binding effect on the members of the class who are not parties to the action. Procedure in this respect is largely a matter of discretion of the trial court.’ ” Northview, supra, 44 Mich App at 618-619, quoting 59 Am Jur 2d, Parties, § 51, pp 415-417. (Emphasis added.)

See also, 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 605.

To be sure, recent Michigan cases have reiterated the Federal requirement that common questions must predominate. See Kass v H B Shaine & Co, Inc, 71 Mich App 101, 105; 246 NW2d 396 (1976), and Grigg v Michigan National Bank, 72 Mich App 358; 249 NW2d 701 (1976). Kass and Grigg, while acknowledging the differences between the present Federal and Michigan class-action rules, nonetheless looked to Federal decisions for guidance. In addition, both Kass and Grigg relied upon the since displaced Northview opinion as reported in 395 Mich 497; 236 NW2d 396 (1975).

We question, however, the wisdom of looking to post-1966 Federal precedent in order to import into GCR 208 "by implication, common sense and reason”, Grigg, supra at 365, the numerous, diverse requirements of the current Federal class-action rule. Doubtless former Federal Rule 23(a)(3), *209and necessarily, the identical GCR 208.1(3), have been the subject of severe criticism. See Advisory Committee’s Note, Proposed Rules of Civil Procedure, 39 FRD 69, 98-99 (1966), Kalven & Rosenfield, The Contemporary Function of the Class Suit, 8 U Chi L Rev 684 (1941), Simeone, Procedural Problems of Class Suits, 60 Mich L Rev 905 (1962). It does not follow, however, that Michigan law must absorb in toto the present Federal rule with its blemishes as well as its strengths. Described as a rule containing "a hodgepodge of pragmatic and occasionally conflicting objectives”, Developments in the Law — Class Actions, 89 Harv L R 1318, 1323 (1976), amended FR Civ P 23 now faces challenge from other class-action statutes which can serve as authoritative models for the states. See the Uniform Class Actions Act recently drafted by the National Conference of Commissioners on Uniform State Laws, 12 Uniform Laws Annotated, 1977 Cum Supp, pp 10-21. See also, NY Civ Prac Law & Rules §§ 901-909 (McKinney Supp 1976). A collation of the current Federal rule, the uniform act and the recently promulgated New York law reveals clearly that the precise nature of class-action practice in any particular jurisdiction depends, at bottom, upon decisions of policy. Since this Court is endowed with neither rulemaking nor legislative authority, we decline to enact "by implication” amended Federal Rule 23.

Assuming, arguendo, that a requirement of predominance nonetheless inheres in GCR 208.1(3), we hold that plaintiffs have satisfied this prerequisite. As one treatise notes:

"[C]ourts have held that an action can be brought under [amended Fed R Civ P 23] (b)(3) even though there is not a complete identity of facts relating to all class members, as long as a 'common nucleus of opera*210tive facts’ is present”. 7A Wright & Miller, Federal Practice and Procedure, § 1778, p 53, citing Esplin v Hirschi, 402 F2d 94, 99 (CA 10, 1968), Illinois v Harper & Row Publishers, Inc, 301 F Supp 484, 488 n 7 (D Ill, 1969), Geo H McFadden & Bro, Inc v Home-Stake Production Co, 295 F Supp 590 (D Okla, 1968).

In the present case, the court below correctly recognized that the question whether "the four defendants violate[d] the laws of Michigan * * * by the discharge into the air of certain gases and particulate matter” is an issue common to all class members.1 Moreover, from a review of the record, an additional factual issue emerges: whether defendants’ concurrent operations create "stenches [which] contaminate the atmosphere to such an extent as to substantially impair the comfort or enjoyment of adjacent premises”, de Longpre v Carroll, 331 Mich 474, 476; 50 NW2d 132 (1951). Similarly, see Waier v Peerless Oil Co, 265 Mich 398, 401; 251 NW2d 552 (1933). These are questions ably suited for class resolution which would assuredly require needless duplication of proofs if each plaintiff were required to prosecute his claim apart from the rest.

Having concluded that common class questions exist (and indeed predominate), we next consider whether "a common relief is sought”. GCR 208.1(3). Defendants argue that since each claimant is concerned solely with his own recovery of damages, common class relief is not being requested. We disagree.

"What seems to have bothered some courts is the requirement of 'common relief.’ If each member of the class has an individual right to damages, these courts *211have thought that 'common relief is not being sought. But the accepted interpretation is that 'common relief in [former] Rule 23(a)(3) covers cases where the same type of relief, such as damages or an injunction, is being sought for or against all members of the class, as distinguished from cases where an injunction is being sought with regard to some members of the class and damages as to others. Thus the fact members of the class may have claims for varying amounts of damages does not prevent the use of the 'spurious’ class suit.” 2 Barron & Holtzoff, Federal Practice and Procedure (Wright ed, 1961), § 562.3, pp 283-284.

We hold therefore that at least with regard to plaintiffs’ claim of private nuisance based on air pollution — as distinguished from allegations of excessive noise and vibrations — the plaintiffs are seeking common relief. Consequently, they may proceed as a class to that extent.

Defendants contend that maintenance of suit either by class action or by permissive joinder will create imponderable problems of jury confusion, deprive defendants of their due process rights and cause the trial to take on the hurly-burly atmosphere of a carnival sideshow. Citing Boring v Medusa Portland Cement Co, 63 FRD 78 (MD Pa, 1974), appeal dismissed 505 F2d 729 (CA 3, 1974), Diamond v General Motors Corp, 20 Cal App 3d 374; 97 Cal Rptr 639 (1971), City of San Jose v Superior Court of Santa Clara County, 12 Cal 3d 447; 115 Cal Rptr 797; 525 P2d 701 (1974), Bajorek v Kurtz, 335 Mich 58; 55 NW2d 727 (1952), and kindred cases, defendants urge us to cease what they view as a monumental disregard of their due process rights.

Having carefully sifted defendants’ citations of authority, we find them inapposite. In Boring, supra, 221 named plaintiffs commenced a class action on behalf of themselves, all "past residents, *212transitory persons and even visitors,” 63 FRD at 83, of plaintiffs’ neighborhood against two corporate defendants whose independent operations released limestone dust into the air. Relying upon the express command of amended FR Civ P 23(b)(3) that a class action be the superior method of adjudication, the court in Boring denied class-action certification because other techniques of litigation would be superior to the class vehicle. The court specifically remarked that notice to absent, potential claimants and the compilation of requests to opt out of the suit, as required by the Federal rule, would prove too burdensome for the fair and efficient administration of justice.

In contrast to Boring, the present suit differs significantly. The instant class is smaller (comprising approximately 46 households according to plaintiffs’ counsel, or possibly 72 claimants according to the interrogatory responses). The class does not include past residents, visitors or transients but only owners and occupiers of land in a relatively compact area. More importantly, notice should prove no problem since absent class members are neither bound by the litigation nor obliged to opt out of the suit. Kass v H B Shaine & Co, supra at 111, Northview, supra, 44 Mich App at 618-619. In any event, given the small size of plaintiffs’ neighborhood, actual notice can easily be achieved. Finally, unlike FR Civ P 23(b)(3), GCR 208.1(3) imposes no requirement that the class suit be superior to other modes of adjudication. Rather, as noted, GCR 208.1(3) functions as a permissive joinder device. Northview, supra, 44 Mich App at 618; 1 Honigman & Hawkins, supra at 605.

For similar reasons, defendants’ other foreign citations can be dismissed summarily, either because the classes of plaintiffs and defendants were *213so huge as to be unwieldy, see Diamond, supra (class suit, representing all property owners and residents of Los Angeles, numbering 7,119,184 persons, against more than 293 industrial corporations and municipalities for air pollution, dismissed as unmanageable), or, because the foreign jurisdiction imposes requirements closely resembling the amended Federal rule, see San Jose, supra (class certification denied plaintiffs representing property owners located near airport runway where absent claimants would be bound by the suit and where common class questions were not "sufficiently numerous and substantial [i.e., predominant] to make the class action advantageous”, 12 Cal 3d at 460; 525 P2d at 710).

Defendants’ reliance on Bajorek, supra, is also unavailing. There a group of property owners, permissively joined by the trial court, sought individual damages against a cement manufacturer whose trucks allegedly caused damage to plaintiffs’ separate parcels from noise, vibration and dust. Interpreting a since repealed statute, MCLA 608.1; MSA 27.591, which permitted joinder where "sufficient grounds” are shown "to promote the convenient administration of justice”, our Supreme Court held the joinder improper.

"We have a situation presented in which a number of persons assert that they have been injured severally in their property rights because of improper and unlawful acts on the part of defendants. It cannot be said with certainty that the same issues will be presented in all of the 25 cases alleged in the declaration and covered by the bill of particulars. Proofs may show damage in some cases but not in others, and defenses may exist against the rights of certain plaintiffs that are not available against other plaintiffs.
"We do not think that it was the intention of the legislature in the enactment of the provisions of the *214statute relating to joinder of causes of action to permit such method of procedure in a situation of the character here involved.” 335 Mich at 64.

Although Bajorek would appear to scuttle plaintiffs’ suit, we do not believe that decision properly controls the case at bar. In Hardware Dealers Mutual Insurance Co v R H Hidey, Inc, 349 Mich 490, 505-506; 84 NW2d 795 (1957), the Supreme Court acknowledged criticism of Bajorek and expressed a willingness to reconsider that holding, but found no need to do so in a suit grounded in contract:

’’[Bajorek] has been the subject of criticism as representing a refusal to continue a trend toward progressive liberalization of civil procedure in Anglo-American law. 51 Mich L Rev 1068.
"While we feel that a complete or substantial disparity of issues of either law or fact and a complete or substantial disparity of defenses available against proposed joint plaintiffs would indeed affect the decision as to whether or not joinder promoted the convenient administration of justice, we do not feel compelled to review these questions and their effect upon proposed joint plaintiffs in tort actions at this time.” (Emphasis added.)

In the present tort suit, this Court finds a substantial parity of issues regarding air pollution: (1) whether defendants’ distinct operations have violated and continue to violate local, state and Federal air pollution standards, and (2) whether the various defendants have released and continue to release contaminants which "substantially impair [or have impaired] the comfort or enjoyment of adjacent premises”, de Longpre, supra, p 476. While other issues, of course, exist which distinguish the claimants, these can be considered sepa*215rately after resolution of the foregoing common questions of liability. Specifically, since GCR 208.1(3) serves merely as a permissive joinder device, Northview, supra, 44 Mich App at 618, 1 Honigman & Hawkins, supra at 605, later severance of parties or claims can be effected "by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just”. GCR 1963, 207.

If "convenient administration of justice” be the touchstone, then we believe, as did the trial court, that judicial economy and convenience to the litigants are better served by permitting the instant suit to proceed as a class action.2 The rule of Bajorek may have functioned well in those halcyon days before the advent of bulging dockets. If it were applied today, however, Bajorek would work "the possible debilitation and blunting of the instrument [i.e., the class action] so useful to * * * everyday, average citizens lost and bewildered in the jungle of giants”. Paley v Coca Cola Co, 389 Mich 583, 595; 209 NW2d 232 (1973) (Williams, J.).

In our view, the difficulties of separate suits against each of four defendants are obvious. As one possible scenario, we reproduce in the margin plaintiffs’ version of the troubles awaiting them if they are consigned to separate trials for relief.3 In *216short, we decline to follow Bajorek, viewing it as a curious anachronism reflecting outdated notions of civil procedure and failing to reflect our state’s growing environmental ethos. See generally Const 1963, art 4, § 52, the Environmental Protection Act, supra, Ray v Mason County Drain Commissioner, 393 Mich 294; 224 NW2d 883 (1975), and Eyde v Michigan, 393 Mich 453, 455; 225 NW2d 1 (1975). In light of the comments in Hardware Dealers, supra, we are convinced the Supreme Court would agree.

Although the suit may continue in class format on the foregoing issues of liability, the question remains whether the jury can reasonably and fairly apportion the liability, if any, of the four defendants. A recent Federal case, Michie v Great Lakes Steel, 495 F2d 213 (CA 6, 1974), cert den 419 US 997; 95 S Ct 310; 42 L Ed 2d 270 (1974), *217provides the answer. In Michie, 37 Canadian residents, permissively joined, sued three firms operating seven American plants across the Detroit River. Founding their claims on common law nuisanee, plaintiffs alleged that pollutants from defendants’ separate facilities would converge in the ambient air and continually waft over the river, thereby damaging plaintiffs’ persons and property. The Sixth Circuit, in an opinion written by Judge George Edwards, formerly a justice of our Supreme Court, addressed an issue substantially similar .to the underlying question at bar:

"Under the law of the State of Michigan, may multiple defendants, whose independent actions of allegedly discharging pollutants into the. ambient air thereby allegedly create a nuisance, be jointly and severally liable to multiple plaintiffs for numerous individual injuries which plaintiffs claim to have sustained as a result of said actions, where said pollutants mix in the air so that their separate effects in creating the individual injuries are impossible to analyze[?]” 495 F2d at 215.

It should be noted that the instant plaintiffs, before both the trial court and this panel, similarly contend that certain emmissions from the defendants’ separate operations combine synergistically4 *218in the circulating air, thus making it well nigh impossible to differentiate particular, offensive substances with precision.

In Michie, after identifying two conflicting strains in Michigan law regarding the indivisibility of injuries caused by multiple, independent tortfeasors,5 the court concluded that the better rule requires the factfinder to resolve

"whether [the] liability of alleged polluters is joint or several * * * . Where the injury itself is indivisible, the judge or jury must determine whether or not it is practicable to apportion the harm among the tortfeasors. If not, the entire liability may be imposed upon one (or several) tortfeasors subject, of course, to subsequent rights of contribution among the joint offenders.
"Assuming plaintiffs in this case prove injury and liability as to several tortfeasors, the net effect of Michigan’s new rule is to shift the burden of proof as to which one was responsible and to what degree from the injured party to the wrongdoers. ” 495 F2d at 217, 218. (Emphasis added.)

We believe Michie correctly enunciates Michigan law. If plaintiffs prevail on the previously posed class issues, the burden of apportioning liability then shifts to defendants who clearly are more familiar than plaintiffs with the nature of the effluents issuing from their respective facilities. Hence, logic dictates that, if general liability *219can be shown, each defendant shall then be required to establish the degree of property damage, if any, attributable to emissions emanating from its particular operations.

Notwithstanding defendants’ expressed fears, pandemonium need not reign at trial. We are confident that with patience and the use of photographs, charts and other demonstrative evidence, an attentive jury will be able to glean the necessary facts. Although the posing of jury instructions may prove challenging, the problem is not intractable.6

"Manageability of the classes * * * may certainly tax the imagination and ingenuity of the litigants, counsel and the court. But until management is recognized as impossible or near impossible, the Court will depend upon the ingenuity and aid of counsel to solve the complex problems this litigation may bring. If successful, the economies of time, effort and expense will more than compensate the effort.” In re Motor Vehicle Air Pollution Control Equipment, 52 FRD 398, 404 (CD Cal, 1970).

Similarly, see Appleton Electric Co v Advance-United Expressways, 494 F2d 126, 139 (CA 7, 1974) (class suit permitted under amended FR Civ P 23 despite defendants’ claims of unmanageability where a class of several million shippers sued a class of 1400 motor carriers).

Assuming the class questions, as heretofore identified, are resolved against the defendants, then other issues will likely come to fore:

(1) the proper mode of (a) verifying each plaintiffs property damages and (b) permitting plain*220tiffs who allege health impairment or noise and vibration damages to pursue those claims;

(2) the availability of defenses, if any, against individual claimants;7 and

(3) the propriety of class-wide versus individual punitive damages against the defendants jointly.

Because of the complexities inherent in litigation of this size, we decline to require any particular procedure with which to dispose of these other questions as they may arise. We believe the trial court with the aid of counsel for both parties can devise expeditious yet equitable means of resolving the additional issues. Whether in exercising its discretion the court below utilizes subclasses, requires separate trials or adopts more imaginative methods of resolving the remaining issues, see, e.g., Lamm, Environmental Class Actions Seeking Damages, 16 Rocky Mt L Inst 59, 99-101 (1971), Developments in the Law — Class Actions, 89 Harv L Rev 1318, 1516-1523 (1976), we believe that the trial court, viewing the proceedings as they de*221velop, is in a far superior position than this Court to determine the most salutary course. However, we commend to the court’s attention the established policy against splitting a cause of action as embodied in GCR 1963, 203.1 and 301.2, and also our belief that calculations of damages are more accurately determined if damages fairly attributable to noise and vibration are assessed alongside those damages caused by air pollution.

With regard to defendants’ request that separate trials against each defendant be ordered under Count I, the suit for injunction, we find no abuse of discretion in the trial court’s refusal to sever. Where several independently emitted contaminants allegedly mix synergistically in the ambient air, a trial court stands on safe ground in denying a request for separate trials. Otherwise, each defendant could point an inculpatory finger at the others and thereby absolve itself of the duty to abate a nuisance.

In closing, we commend the lower court for its willingness to grapple with the countless challenges generated by a suit of this kind. A jurist wedded to the tired procedures of the past might not have been as willing as the judge below to open the courthouse doors and resolve the taxing issues raised by the instant litigation. But then again, a judge of lesser stock is not the type of public servant that our increasingly litigious citizens demand and deserve.

Affirmed. Costs to plaintiffs.

Although the trial court dubbed this issue as one of law, we hold it to be one of fact.

Given our belief that maintenance of the instant suit as a class furthers the "convenient administration of justice”, it follows that the permissive joinder of plaintiffs, if that had been effected, would also have been proper. See GCR 1963, 206.1(2), which expressly permits joinder where "it appears that [plaintiffs’] presence in the action will promote the convenient administration of justice”.

Based on the pre-trial statement filed with the lower court, plaintiffs estimate the duration of separate trials as follows:

"[T]here are 20 named plaintiffs divided into 12 households, plus 34 more households consisting of unnamed class members who have claims. Presumably if separate trials were granted, this would require 46 trials, one for each household. There are 51 witnesses listed, all of *216whom may not be called. 51 witnesses plus 72 individual plaintiffs equal 123 testifiers in one trial. Some may require many hours to testify, others only a very few minutes. Let us assume that they average 1 hour each. Allowing 20 court hours per week plus 2 days for openings and closing means about 6-1/2 weeks would be required to present plaintiffs’ case as a class action. Defense proofs would be in addition. It would be a long trial, but not longer than several which are tried nowdays.
"Of the 51 witnesses listed by plaintiffs, about 38 of them are common witnesses. (Air pollution inspectors, lab technicians, experts on air pollution effects, etc.). If separate trials were ordered, these 38 witnesses would have to come back and re-testify in each of the 46 trials. (Also, some plaintiffs would be called as witnesses in the trials of other plaintiffs.) By the same estimate as above, 1 hour per witness, there would be 46 trials with 42 or more witnesses each, or a total of 1,932 witness hours required. In addition there would be 46 opening statements for each party, 46 jury selections, 46 sets of summations and 46 jury charges. By this route 2 years and 30 weeks of solid trial time would be needed for plaintiffs’ proofs. With defendants’ cases added, it could take 3-1/2 years to try this matter.” (Appellee’s brief at 8.)

N. B., plaintiffs’ calculations assume that the various defendants would be tried jointly in each plaintiffs separate suit. If, however, as defendants request, each plaintiff were required to prosecute his claim against the defendants in four distinct lawsuits, then plaintiffs’ calculations (assuming they are reasonable) would have to be quadrupled.

The problem of synergistic chemical reaction and the ensuing difficulty of proving the harm caused by isolated contaminants has recently been addressed:

"Assume that a suit is brought alleging water quality degradation as a result of several polluters discharging wastes into a river. Some potential defendants discharge hot water; others, chemical wastes. Assume further that a synergistic interaction between chemical and thermal pollutants intensifies the effect of both effluents. If an action were brought against the class of chemical polluters alone, the defendant class could assert that liability, if any, rested with the thermal polluters. A similar defense, of course, would be available to a class of thermal polluters. If plaintiffs must sue these groups separately, the party bearing the risk of nonpersuasion will probably lose both suits. The only way to fairly allocate liability is to combine *218the two subclasses for adjudication of common legal and factual questions, even though certain questions of fact would vary between the subgroups.” Parsons & Starr, Environmental Litigation and Defendant Class Actions: The Unrealized Viability of Rule 23, 4 Ecology L Q 881, 909-910 (1975). (Footnotes omitted.)

See, Meier v Holt, 347 Mich 430; 80 NW2d 207 (1956), DeWitt v Gerard, 281 Mich 676; 275 NW 729 (1937), DeWitt v Gerard, 274 Mich 299; 264 NW 379 (1936), Frye v Detroit, 256 Mich 466; 239 NW 886 (1932). Compare Watts v Smith, 375 Mich 120; 134 NW2d 194 (1965), Maddux v Donaldson, 362 Mich 425; 108 NW2d 33 (1961).

See, e.g., Wayne Circuit Judge Victor Baum’s charge to the jury in Heine, et al v The Budd Co, Wayne Circuit Court No. 56172, a similarly complex pollution suit, reproduced in Practicing Law Institute, Legal Control of the Environment — 3d, p 121 et seq.

While Bajorek, supra, as tempered by Hardware Dealers, supra, cautions against resolving en masse the claims of numerous plaintiffs where there exists "a complete or substantial disparity of defenses available”, 349 Mich at 506, no such disparity appears in the instant case. In their brief, defendants do not avail themselves of any defenses which pertain to the class as a whole. Rather, they assert that "[defenses likely exist against the rights of certain plaintiffs that are not available against other plaintiffs, i.e., statute of limitations”. (Appellants’ brief at 21.) Thus, the more appropriate procedure, as outlined in the text, is to postpone resolution of any defenses available against individual claimants until after the disposition of the common class questions.

With regard to the availability of the statute of limitations, however, we note our approval of the lower court’s comments:

“The defendant claims that the statute of limitations prevents any claims which accrued more than three years prior to filing of the complaint. This argument is not persuasive in that the general rule provides that where a tort involves a continuing or repeated injury, the cause of action accrues at, and limitations begin to run from the date of the last injury. 54 CJS, Limitations of Actions § 169. Therefore, in the normal pollution case, since the tort is committed every day, the cause of action will accrue up to the time of trial.”