Wargo v. Barry

A motor vehicle accident occurred between a car owned by Leona A. Wargo and operated by Joseph B. Wargo and a car owned and operated by Frank Barry.

Leona A. Wargo sued Barry to May Term, 1965, no. 372 for damage to her car. Joseph B. Wargo sued Barry to May Term, 1965, no. 454, for personal injuries.

Instead of filing a counterclaim in the action brought by Joseph B. Wargo, Barry brought a separate suit against Joseph B. Wargo to November Term, 1965, no. 545, for damage to his car.

Barry has filed a petition to consolidate all three actions for trial. The petition is opposed by Leona A. Wargo.

The court is of opinion that the case of Leona A. Wargo would be prejudiced if it were consolidated with the other two cases. Her claim is against Barry alone. She makes no claim against Joseph B. Wargo. Contributory negligence may become an issue between Barry and Joseph B. Wargo, but no negligence may be imputed to Leona A. Wargo, since there is no allegation that she was a passenger in the car operated by Joseph B. Wargo nor any allegation that Joseph B. Wargo was operating the car as her agent, servant or employe. The jury might very easily be confused as to the legal issues involved. Consolidation of the case of Leona A. Wargo is denied.

Petitioner Barry seems to take an “all or nothing” position as to consolidation. In his brief, Barry states that if consolidation of Leona A. Wargo’s case is denied, then he, Barry, “may well elect to exercise his right to withdraw his petition to consolidate as to the remaining two cases”.

*745In view of that position, we enter the following:

Order

And now, December 19, 1966, the petition to consolidate is denied and the rule to show cause is discharged.