Opinion
6 Div. 420.
January 17, 1946.
Original petition of Merrel P. Callaway, as trustee of the Central of Georgia Railway Company, for mandamus to J. Russell McElroy, as Judge of the Circuit Court, Jefferson County, requiring respondent to vacate an order denying petitioner's motion to consolidate causes pending against petitioner in said court.
Writ denied and petition dismissed.
Circuit Court Rule 18D of the Tenth Judicial Circuit (Jefferson County) is in pertinent part as follows:
"Factors to be considered in ruling on motion to consolidate cases to be tried by juries.
"Included among the factors to be considered in determining the propriety of ordering a consolidation of civil actions to be tried by juries, where objection is made to the proposed consolidation, are the following:
"1. A factor to be considered is whether or not consolidation will produce such confusion as to make it difficult for the jury to understand the issues, or to recollect the evidence, or to understand the application and effect of the various evidential data to the issues.
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"(c) In the application of factor No. 1 as a general proposition but subject to exception for good reason, the fact that contributory negligence by one plaintiff will be a defense to this cause of action, but will not be a defense to another plaintiff's cause of action, will be regarded as a cause for not ordering consolidation against the objection of such other plaintiff.
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"2. A factor to be considered is whether or not a consolidation will create a serious risk of placing a party at a substantial disadvantage, to which he would not be subject were the actions tried separately, either in winning a verdict, or as respects the amount of damages that may be awarded to or against him.
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"(e) In the application of factor No. 2 as a general proposition but subject to exception for good reason, an action for wrongful death should not be consolidated with another action."
Sadler Sadler, of Birmingham, for petitioner.
Consolidation of actions, such as here sought, is authorized by statute, when it appears reasonable to do so. Code 1940, Tit. 7, § 221. The fact that the statute authorizes the court to enter a particular order when it appears reasonable to do so implies that there will be no fixed rule but contemplates the exercise of judgment in each case. Palliser v. Home Tel. Co., 170 Ala. 341, 54 So. 499; Long v. George, 296 Mass. 574, 7 N.E.2d 149; 12 Words and Phrases, Perm.Ed., 590. If the rule be not arbitrary, it must conform to the judicial pronouncements made by this Court. See Ex parte Ashton, 231 Ala. 497, 165 So. 773, 104 A.L.R. 54.
Taylor, Higgins, Koenig Windham, of Birmingham, for respondent.
There was no abuse of discretion. Code 1940, Tit. 7, § 221. The rule of the Circuit Court is not arbitrary or unreasonable and in no wise conflicts with the statute. 21 C.J.S., Courts, § 170, p. 261; Code, Tit. 13, §§ 126(6), 162; Tit. 7, § 221.
This is an original application by Merrel P. Callaway, as trustee of the Central of Georgia Railway Company, by petition to this court, for the issuance of the writ of mandamus to the Circuit Court of Jefferson County, Hon. J. Russell McElroy, Judge Presiding, to require said court to vacate an order denying petitioner's motion to consolidate case number 9299-X (James L. Dodd, as Administrator of the Estate of Alma Dodd, deceased, against said petitioner) with case number 10167-X (A. C. S. Chevrolet Co., Inc., a corp., against petitioner). Both of these cases arise out of the same accident, occurring on the 9th of September, 1943, at a railroad crossing in the City of Birmingham, in which plaintiff's intestate in the first case lost her life; and the automobile, which she was driving (the property of the Chevrolet Company), was badly injured and damaged when it came in contact with a train operated on said railroad by the petitioner, as trustee, by and through his agents and servants.
The first suit is under the homicide act, and the other involves a common-law liability alleged to have resulted from the negligence of the operative of said train.
The court after hearing preliminary proof denied the motion, which was filed under the provisions of § 221, Title 7, Code 1940.
It is now settled that if the cases sought to be consolidated fall within the influence of said section of the code and the power conferred on the court by said section, the question as to whether such consolidation will be made or denied, is a matter of sound judicial discretion, not reviewable by mandamus in the absence of gross abuse. Ex parte Mount, 242 Ala. 174, 5 So.2d 637; Ex parte Beard, 246 Ala. 338, 20 So.2d 721.
It appears from the preliminary proof made to the court that said cases fall within the influence of the statute and the power granted thereby, and that the ruling of the court is consistent with subsection (c) of factor 1, and subsection (e) of factor 2 of Circuit Court Rule 18-D, adopted by the court as authorized by said § 221 of the code.
The judge filed answer to the petition waiving issuance of the rule nisi, in which said Rule 18-D was pleaded, and said answer has not been controverted. We are not of opinion that a case for the issuance of the writ of mandamus is made.
Writ denied and petition dismissed.
GARDNER, C. J., and LIVINGSTON and SIMPSON, JJ., concur.