For the plaintiffs, Matlack & Lautman.
For Margaret H. Davis and Fred H. Davis, Joseph T. Karcher.
For the defendants, George L. Burton.
Before Justices Trenchard, Parker and Perskie.
The opinion of the court was delivered by
PERSKIE, J. On October 21, 1937, Josephine V. Keast was traveling in her automobile, driven by Edgar S. Thorn, in the State of Kentucky. May E. Thorn and Margaret H. Davis were also in the automobile; they claim they were passengers by invitation of Josephine V. Keast. While so traveling a collision occurred between the Keast automobile and a motor truck. As a result thereof Josephine V. Keast was killed and May E. Thorn and Margaret H. Davis were injured. Two separate law suits followed in the order next stated.
First, on January 10th, 1938, Margaret H. Davis and Fred H. Davis sued Minnie Shill Langue and Muriel V. Angell, executrices of the estate of Josephine V. Keast, and Edgar S. Thorn, to recover their respective damages. That suit was filed in this court and the venue was laid in Middlesex county where concededly the plaintiffs and Edgar S. Thorn resided. Because Josephine V. Keast in her lifetime resided in Monmouth county, where her estate is being administered, and because both executrices are non-residents, service in this suit, as well as in the second suit presently stated, was made upon the surrogate of the county of Monmouth in pursuance of R.S. 3:13-12 and 13. Answer was filed; and at the time of taking depositions (September 23d, 1938), this suit was listed as case number 86 on the list of causes set down for trial at the Middlesex Circuit; trials were scheduled to commence on September 26th, 1938.
Second, on March 4th, 1938, May E. Thorn and Joseph S. Thorn, Jr., her husband, also sued the same defendants, to recover their respective damages arising out of the same accident. That suit, too, was filed in this court but the venue was laid in Monmouth county. Answer and reply were filed. No number had been assigned to this suit, nor had it appeared on the Monmouth calendar for trial of causes when the depositions on the rule were taken.
On September 17th, 1938, defendants put in motion the instant proceeding which resulted in the granting of the rule on October 6th, 1938.
The proofs as to plaintiffs' residence in this suit are substantially that Joseph S. Thorn, Jr., lives with his wife; that he has resided in Sayreville (Middlesex county) for over forty-one years; that he has always voted from Sayreville; but that each year since 1922 his wife and he have lived in Ocean Grove (Monmouth county) "from around the first of May to the middle or last of October."
Defendants in support of the rule, generally stated, argue that since both suits arise out of the same occurrence, involve the same issues, and the same evidence will be material and necessary to be produced in each case; that since it may be necessary to produce witnesses from Kentucky; that since their medical witnesses who examined both plaintiffs reside in Middlesex county, and, finally, since all plaintiffs actually live in Middlesex county, that to compel them (defendants) to stand two separate trials would work a grave injustice upon them; for, it would put them to an unnecessary double expense.
On the other hand, each plaintiff stoutly challenges the efficacy of defendants' claims in support of their right to the relief they seek. Each plaintiff insists that the venue in each suit was laid in the proper county; and that defendants' application was not timely made. Additionally, it is especially argued for the Thorns that since the plaintiffs are different in each suit no right of consolidation of both suits exists. While for the Davis's it is especially argued that their interest would be seriously impaired if the two suits were consolidated because in the case of the Thorns, parents are suing their own son.
1. The right to consolidate several actions is regulated by statute. "Defendants may, at any time, move to consolidate several actions which are capable of being consolidated." R.S. 2:27-114.1. This statute has for its source the concluding sentence of section 115, Pamph. L. 1903, p. 570. Neither the fact that the parties plaintiff are different, nor the fact that the parties plaintiff and one defendant in one of the suits are related, is, under the circumstances, the determinative test to the right of consolidating the two suits. The determinative test is the one prescribed by the legislature: are the several actions capable of being consolidated? And those actions are capable of consolidation which clearly involve, as do the two suits here, the same occurrence, the same issues, and the same defenses. For an interesting case on consolidation see by analogy the case of Metropolitan Casualty Insurance Co. v. Lehigh Valley Railroad Co., 94 N.J.L. 236; 109 A. 743 (known as the "Black Tom Explosion" case). In that case our Court of Errors and Appeals approved, under paragraphs 4 and 6 of our Practice act of 1912 (chapter 231, page 377) the consolidation of twelve separate cases against the same defendant where the claims were for glass damage in ten cases, for damage for the loss of the schooner "Walcott" in the Clark case, and for damages for personal injuries in the Allen case, because all claims grew out of the same explosion. Cf. also, Greenspan Bros. Co. v. Collins, 122 N.J.L. 234.
But obviously the two suits here involved cannot be consolidated unless the venue in one be changed so that the venue in both lie in the same county. Is such a change from Monmouth to ...