Negligence — Husband and wife — Injuries — Suit by husband and wife — Suit by husband for personal injuries — Settlement of suit by husband and wife — Trials C.P. — Consolidation of suits.
In an action of trespass against a gas company to recover damages for personal injuries sustained as a result of gas escaping from the defendant's pipes, the record disclosed that the plaintiff and his wife were both seriously injured by the escaping gas and that the plaintiff and his wife instituted suit against the gas company to recover for the personal injuries sustained by the wife and for the plaintiff's loss of her society, services, comfort and assistance and for medical expenses incurred in her behalf. Later the plaintiff instituted a second suit to recover for his own personal injuries. When the cases were called for trial the plaintiff's counsel moved that the two cases be consolidated but the trial judge overruled the motion after the defendant's counsel objected to the consolidation. The suit by the plaintiff and his wife proceeded to trial but during the progress thereof, a settlement of that case was agreed upon by the parties. The release executed by the plaintiff and his wife as well as the letter transmitting the release to the defendant clearly disclosed that the rights of the plaintiff in his individual suit were not to be affected. Later the plaintiff's case came on for trial and resulted in a verdict for him. The defendant in its motion for judgment non obstante veredicto alleged that only one suit should have been brought to cover all of the injuries sustained by the plaintiff and his wife, and that, a settlement having been made in the action first brought to trial, the plaintiff's individual action was thereby barred and rendered nugatory.
In such case, where the defendant objected to the plaintiff's effort to rectify the procedural error by consolidating the two suits, he is estopped from taking the position that the trial of the one suit barred the other and the order of the court below entering judgment on the verdict for the plaintiff and refusing defendant's motion for judgment non obstante veredicto will be affirmed.
Where a husband and wife receive personal injuries arising out of the same tort, the husband sustains two items or classes of damage, one being the damages which he sustained in connection with his wife's injuries, and the other the damages which he sustained from his own injuries. In such case he should combine the two items of damage in one suit in which he and his wife are the plaintiffs.
A litigant cannot object to a situation arising from a ruling made by a trial judge at his instance or because of his objections.
Practice C.P. — Actions of trespass — Husband and wife — Consolidation.
The effect of a consolidation of actions at law is to unite and merge all of the different actions consolidated into a single action, in the same manner as if the different causes of action involved had originally been joined in a single action.
Argued October 11, 1932.
PER CURIAM, January 25, 1933:
The judgment is affirmed upon the opinion of the learned president judge of the court below.