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Schwartz v. Swan

OCTOBER 5, 1965.

DOROTHY SCHWARTZ AND CLARENCE SCHWARTZ, PETITIONERS-APPELLANTS,

v.

VADA ABERNATHY SWAN, LAWRENCE ALLEN BRAY AND MARY J. POLIVICK, RESPONDENTS-APPELLEES. ADELIA SCHWARTZ, PETITIONER-APPELLANT,

v.

VADA ABERNATHY SWAN AND LAWRENCE ALLEN BRAY, RESPONDENTS-APPELLEES.



Appeal from the Circuit Court of St. Clair County; the Hon. FRANK E. HANAGAN, Judge, presiding. Judgment reversed and cause remanded.

GOLDENHERSH, J.

Plaintiffs, Dorothy Schwartz, Clarence Schwartz and Adelia Schwartz appeal from judgments entered on jury verdicts finding the issues in favor of defendants, on plaintiffs' claims for personal injuries and loss of consortium. Proper presentation of the issues raised by the appeal requires a review of the pleadings, and of certain procedural questions which arose prior to trial.

Plaintiffs, Dorothy Schwartz and Clarence Schwartz, are husband and wife. Plaintiff, Adelia Schwartz, is the widow of the deceased brother of plaintiff, Clarence Schwartz.

On July 2, 1962, plaintiffs, Dorothy and Clarence Schwartz, filed a four count complaint in the Circuit Court of St. Clair County. In Count I, plaintiff, Dorothy Schwartz, alleges that on August 13, 1960, she was a passenger in an automobile operated by plaintiff, Adelia Schwartz, that while the car in which she was riding was stopped at a stop sign, automobiles driven by the defendants, Vada Abernathy, and Lawrence Allen Bray, collided, causing Vada Abernathy's automobile to strike the automobile in which plaintiff was riding. This count contains the usual allegation of plaintiff's freedom from contributory negligence, and charges the defendants with various acts of negligence.

Count II alleges that on August 23, 1960, plaintiff, Dorothy Schwartz was riding in an automobile being driven by plaintiff, Clarence Schwartz; that the automobile was struck by a car driven by defendant, Mary J. Polivick; that plaintiff was free of contributory negligence and defendant, Mary J. Polivick was negligent.

Count I alleges that in the occurrence on August 13, 1960, plaintiff, Dorothy Schwartz, suffered injuries to her head, neck and shoulders, that on August 23, 1960, her head, neck, shoulders, arms and back were injured, and that she is unable to allege to what extent the occurrence of August 13, 1960, caused or contributed to her condition of ill being.

Count II alleges that the occurrence on August 23, 1960, in addition to the injuries caused thereby, aggravated the injuries suffered on August 13, 1960, and that she is unable to allege to what extent the injuries of which she complains resulted from either of the two occurrences.

In Count III, plaintiff, Clarence Schwartz, sues for loss of consortium resulting from the occurrence of August 13, 1960, and in Count IV seeks to recover damages for loss of consortium suffered by reason of the occurrence of August 23, 1960.

On July 3, 1962, plaintiff, Adelia Schwartz, filed suit seeking to recover damages from defendants Abernathy and Bray for injuries allegedly suffered in the occurrence of August 13, 1960.

Defendants, Bray and Polivick, answered the complaints. The three defendants, Bray, Polivick, and Abernathy, filed separate motions for severance of Counts I and II of the complaint in the case of Dorothy Schwartz and Clarence Schwartz. Defendant Bray, in his motion, stated that he had no part in the occurrence of August 23, 1960, cannot be held responsible for any injury caused plaintiffs on that date, and the trial of issues involving two separate accidents would prejudice a substantial right to a fair and just trial, of the defendant, Bray. Defendant, Polivick, represented by the same counsel, in identical language, moved for severance for the same reasons. Defendant, Abernathy, in her motion, states that Counts I and II constitute entirely separate causes of action, involve claims against different defendants, allege different facts, and the evidence and instructions would be so complicated and cause such confusion as to make it impossible for the jury to comprehend the proceedings, making it impossible for defendant to receive a fair trial.

After hearing arguments of counsel, the court ordered a severance of the cases, directing that the counts pertinent to the occurrence of August 13, 1960, be severed from those pertinent to the occurrence of August 23, 1960, and further directing that they be thereafter treated as two separate cases, with different docket numbers.

Plaintiffs, Dorothy Schwartz and Clarence Schwartz, sought to appeal from the order of severance, and this court (then the Fourth District) dismissed the appeal on the ground that the order of severance was not a final, appealable order.

Subsequent to the dismissal of the appeal, the court, over the objection of plaintiffs, allowed the motion of defendant Abernathy, to consolidate the case of Adelia Schwartz with the case of Dorothy Schwartz and Clarence Schwartz, each case seeking to recover from defendants, Bray and Abernathy, for injuries suffered on August 13, 1960.

The consolidated cases involving the collision on August 13, 1960, came on for trial, the jury found for all defendants as to the claims of all three plaintiffs, judgments were ...


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