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Sommers v. Korona

DECEMBER 31, 1964.

ALVIN SOMMERS, PLAINTIFF-APPELLANT, AND ROSALIE SOLOMON, PLAINTIFF,

v.

CHESTER KORONA, DEFENDANT, AND NADO MASSARI AND IRENE MASSARI, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. CORNELIUS J. HARRINGTON, Judge, presiding. Affirmed.

MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

This appeal is taken by plaintiff, Alvin Sommers, from an order of the trial court dismissing Count I of the complaint.

Count I alleged that on December 28, 1962, the plaintiff, Alvin Sommers, was operating a motor vehicle, and that while he was in the exercise of due care for his own safety, the defendants, Irene Massari and Nado Massari, who were also operating a motor vehicle, collided with the rear of the plaintiffs' vehicle, causing the plaintiff, Alvin Sommers, to suffer "severe, multiple, and permanent injuries." The next paragraph states that as a consequence of said injuries above enumerated, "there exists a common question of fact regarding the plaintiff, Alvin Sommers, the allegations which appear in Count II." It is further stated that as a direct and proximate result of the negligence of the defendant, the plaintiff, Alvin Sommers, suffered and sustained "divers serious wounds and injuries in and about his head, body, arms, and legs, which caused injuries of a permanent and lasting nature."

Count II alleged that on August 15, 1963, the plaintiff, Alvin Sommers, was operating a motor vehicle and was exercising due care. Accompanying him was Rosalie Solomon. It further alleged that both Sommers and Solomon at the time were exercising due care for their own safety; that the defendant, Chester Korona, who was also operating a motor vehicle, collided with the rear of Sommers' vehicle, causing "severe, multiple and permanent injuries" to both plaintiffs; and it repeats the same statement enumerating the injuries made in Count I.

The defendants, Nado Massari and Irene Massari, on October 22, 1963, filed a motion to dismiss Count I of plaintiffs' complaint, and in that motion stated that the Massaris have never had any affiliation, association or connection with Korona, and that the accidents of December 28, 1962, and August 15, 1963, have no association or relevance, and that the parties-plaintiff in the two counts are not identical.

On November 13, 1963, defendant Korona filed an answer to Count II of the complaint. On November 18, 1963, an order was entered permitting an affidavit of John G. Phillips, attorney for the plaintiff, Alvin Sommers, to be filed. In that affidavit he states that he filed the suit against the defendants in accordance with Section 24 and Section 44 of the Civil Practice Act, it appearing that the plaintiff, Alvin Sommers, received injury to the same portion of his body in the two separate accidents, and that it would be prejudicial to the plaintiff to try the cases separately for the reason "that there exists this common question of fact which can only be adjudicated by one jury."

On the same day the trial court entered an order dismissing the Massaris as defendants in the action and also dismissing Count I of the complaint. The order contained the required provision under Section 50(2) of the Civil Practice Act. From that order this appeal is taken.

The plaintiff in this court relies upon certain sections of the Civil Practice Act. Section 44(1) provides:

"Subject to rules any plaintiff or plaintiffs may join any causes of action, whether legal or equitable or both, against any defendant or defendants; and subject to rules the defendant may set up in his answer any and all cross demands whatever, whether in the nature of recoupment, set-off, cross bill in equity or otherwise, which shall be designated counterclaims."

Section 44(2) provides:

"The court may, in its discretion, order separate trial of any causes of action, counterclaim or third-party claim if it cannot be conveniently disposed of with the other issues in the case. . . ."

Section 26 provides:

"No action shall be dismissed for misjoinder of parties, or dismissed for non-joinder of necessary parties without first affording reasonable ...


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