WiNborne, J.
“Did the court commit error in, ex
mero motu,
ordering the consolidation of these cases for trial?” Appellant states this as the question involved on this appeal. Decisions of this Court answer “No.”
Neither of the plaintiffs, appellees,' has filed a brief.
The decisions of this Court uniformly recognize that the trial court possesses the power in proper cases to order the consolidation of actions for trial. See McIntosh on North Carolina Practice and Procedure, pp. 536-539;
Person v. Bank,
11 N. C., 294;
Buie v. Kelly,
52 N. C., 266;
Glenn v. Bank,
70 N. C., 191;
Hartman v. Spiers,
87 N. C., 28;
Monroe Bros. & Co. v. Lewald,
107 N. C., 655, 12 S. E., 287;
Lumber Co. v. Sanford,
112 N. C., 655, 16 S. E., 849;
Wilder v. Greene,
172 N. C., 94, 89 S. E., 1062;
Ins. Co. v. R. R.,
179 N. C., 255, 102 S. E., 417;
Ins. Co. v. R. R.,
179 N. C, 290, 102 S E., 504;
Henderson v. Forest,
184 N. C., 230, 114 S. E., 391;
Blount v. Sawyer,
189 N. C., 210, 126 S. E., 424;
Fleming v. Holleman,
190 N. C., 449, 130 S. E., 171;
Rosenmann v. Belk-Williams Co.,
191 N. C., 493, 132 S. E., 282;
Durham v. Laird,
198 N. C., 695, 153 S. E., 261;
Abbitt v. Gregory,
201 N. C., 577, 160 S. E.,
896; Pridgen v. R. R.,
203 N. C., 62, 164 S. E., 325;
Trust Co. v. Green,
204 N. C., 780, 168 S. E., 224;
Power Co. v. Yount,
208 N. C., 182, 179 S. E., 804;
Hewitt v. Urich,
210 N. C., 835, 187 S. E., 759;
Kalte v. Lexington,
213 N. C., 779, 197 S. E., 691;
Robinson v. Transportation Co.,
214 N. C., 489, 199 S. E., 725;
Park, Inc., v. Brinn,
223 N. C., 502, 27 S. E. (2d), 548;
In re Will of Atkinson,
225 N. C., 526, 35 S. E. (2d), 638.
In keeping with these decisions this Court has said that the general rule, in determining the legal aspect of consolidation, is that the judge has the power to consolidate actions involving the same parties and the same subject matter if no prejudice or harmful complications will result therefrom. This salutary power, it is stated, is vested in the judge in order to avoid multiplicity of suits, unnecessary costs and delays, and as a protection against oppression and abuse.
Durham v. Laird, supra,
and eases there cited. See also
Abbitt v. Gregory, supra.
And it has been held by this Court that it is proper to consolidate for trial separate actions by different plaintiffs against common defendants for damages arising out of the same accident, except when such consolidation would be injurious or prejudicial to one or more of the parties. See
Ins. Co. v. R. R.,
179 N. C., 255, 102 S. E., 417, and
Ins. Co. v. R. R.,
179 N. C., 290, 102 S. E., 504;
Fleming v Holleman, supra; Pridgen v. R. R., supra; Baker v. R. R.,
205 N. C., 329, 171 S. E., 342;
Hewitt v. Urich, supra; Robinson v. Transportation Co., supra.
In each of the two cases of
Ins. Co. v. R. R., supra,
separate fire insurance companies sought in separate actions to recover the several amounts
they bad been compelled to pay on fire insurance policies as tbe result of tbe same fire allegedly caused by actionable negligence of defendant. In tbe first of these cases tbis Court approved tbe consolidation ordered upon motion. And in tbe second, tbis Court beld on authority of the first case that the trial judge erred in ruling that be did not have tbe power to consolidate tbe several actions brought by tbe insurance companies.
In
Fleming v. Holleman, supra,
two separate actions in behalf of different plaintiffs against same defendant to recover damages for injuries sustained allegedly through negligence of defendant were consolidated. This Court saw no error.
In
Pridgen v. R. R., supra,
tbe consolidation of an action by an employee to recover for personal injuries sustained in a collision between tbe truck be was driving and tbe defendant’s railroad train with an action by the employer for damages to tbe truck was beld not to be error. Tbe Court, in opinion by
Brogden, J.,
stated: “Both cases grew out of tbe same injury and practically tbe same defenses were interposed.”
In
Hewitt v. Urich, supra,
Mrs. Claudia Hewitt and A. J. Hewitt, wife and husband, brought separate actions against defendant for damages for personal injuries each sustained in an automobile accident while they were riding as guests of defendant in an automobile owned and operated by him. Tbis Court beld that there was no error in consolidating tbe two actions for trial, citing
Fleming v. Holleman, supra,
and the first
Ins. Co. v. R. R., supra.
In
Baker v. R. R., supra,
an action for damages for wrongful death of Heber C. Baker, an “invited guest or passenger,” and an action by Jacob C. Williams for damages for personal injury sustained in collision between automobile operated by Williams and tbe dividing wall under one of defendant’s bridges, were consolidated for trial. Tbis Court disposes of tbe exception shown in record on appeal by saying, “As tbe two causes of action arose out of tbe same collision or same state of facts, for convenience, they were consolidated and tried together,” citing
Fleming v. Holleman, supra.
And in
Robinson v. Transportation Co., supra,
as tbe record shows, tbe trial judge ordered that five separate actions, instituted by different plaintiffs, in which each sought damages for personal injuries and one property damage, be consolidated and tried together. Tbis Court, in opinion by
Seawell, J.,
states : “Tbe exception to tbe consolidation of tbe cases for tbe purpose of trial is without merit. In tbis State tbe power of tbe trial court to consolidate cases for convenience of trial is not confined to cases between tbe same parties, but extends to cases by tbe same plaintiff against several defendants and cases by different plaintiffs against tbe same defendant, where tbe causes of action grow out of tbe same transaction and tbe defense is tbe same.
Abbitt v. Gregory,
201
N. C., 577, 593, 594. McIntosh, Practice and Procedure, 536, 539. The liability of the defendants, if any, to the several plaintiffs in this action grew out of the same alleged negligent acts and the defense is the same. There is no apparent prejudice to the defendants in the consolidation of these actions which might interfere with the discretion of the court in making the order.”
Further, in the cases of
Hewitt v. Urich, supra,
as shown by the record on appeal, and in
Abbitt v. Gregory, supra,
cited in the
Robinson case, supra,
the orders for consolidation were made in each instance by the judge of his own mere motion, that is,
ex mero motu.
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WiNborne, J.
“Did the court commit error in, ex
mero motu,
ordering the consolidation of these cases for trial?” Appellant states this as the question involved on this appeal. Decisions of this Court answer “No.”
Neither of the plaintiffs, appellees,' has filed a brief.
The decisions of this Court uniformly recognize that the trial court possesses the power in proper cases to order the consolidation of actions for trial. See McIntosh on North Carolina Practice and Procedure, pp. 536-539;
Person v. Bank,
11 N. C., 294;
Buie v. Kelly,
52 N. C., 266;
Glenn v. Bank,
70 N. C., 191;
Hartman v. Spiers,
87 N. C., 28;
Monroe Bros. & Co. v. Lewald,
107 N. C., 655, 12 S. E., 287;
Lumber Co. v. Sanford,
112 N. C., 655, 16 S. E., 849;
Wilder v. Greene,
172 N. C., 94, 89 S. E., 1062;
Ins. Co. v. R. R.,
179 N. C., 255, 102 S. E., 417;
Ins. Co. v. R. R.,
179 N. C, 290, 102 S E., 504;
Henderson v. Forest,
184 N. C., 230, 114 S. E., 391;
Blount v. Sawyer,
189 N. C., 210, 126 S. E., 424;
Fleming v. Holleman,
190 N. C., 449, 130 S. E., 171;
Rosenmann v. Belk-Williams Co.,
191 N. C., 493, 132 S. E., 282;
Durham v. Laird,
198 N. C., 695, 153 S. E., 261;
Abbitt v. Gregory,
201 N. C., 577, 160 S. E.,
896; Pridgen v. R. R.,
203 N. C., 62, 164 S. E., 325;
Trust Co. v. Green,
204 N. C., 780, 168 S. E., 224;
Power Co. v. Yount,
208 N. C., 182, 179 S. E., 804;
Hewitt v. Urich,
210 N. C., 835, 187 S. E., 759;
Kalte v. Lexington,
213 N. C., 779, 197 S. E., 691;
Robinson v. Transportation Co.,
214 N. C., 489, 199 S. E., 725;
Park, Inc., v. Brinn,
223 N. C., 502, 27 S. E. (2d), 548;
In re Will of Atkinson,
225 N. C., 526, 35 S. E. (2d), 638.
In keeping with these decisions this Court has said that the general rule, in determining the legal aspect of consolidation, is that the judge has the power to consolidate actions involving the same parties and the same subject matter if no prejudice or harmful complications will result therefrom. This salutary power, it is stated, is vested in the judge in order to avoid multiplicity of suits, unnecessary costs and delays, and as a protection against oppression and abuse.
Durham v. Laird, supra,
and eases there cited. See also
Abbitt v. Gregory, supra.
And it has been held by this Court that it is proper to consolidate for trial separate actions by different plaintiffs against common defendants for damages arising out of the same accident, except when such consolidation would be injurious or prejudicial to one or more of the parties. See
Ins. Co. v. R. R.,
179 N. C., 255, 102 S. E., 417, and
Ins. Co. v. R. R.,
179 N. C., 290, 102 S. E., 504;
Fleming v Holleman, supra; Pridgen v. R. R., supra; Baker v. R. R.,
205 N. C., 329, 171 S. E., 342;
Hewitt v. Urich, supra; Robinson v. Transportation Co., supra.
In each of the two cases of
Ins. Co. v. R. R., supra,
separate fire insurance companies sought in separate actions to recover the several amounts
they bad been compelled to pay on fire insurance policies as tbe result of tbe same fire allegedly caused by actionable negligence of defendant. In tbe first of these cases tbis Court approved tbe consolidation ordered upon motion. And in tbe second, tbis Court beld on authority of the first case that the trial judge erred in ruling that be did not have tbe power to consolidate tbe several actions brought by tbe insurance companies.
In
Fleming v. Holleman, supra,
two separate actions in behalf of different plaintiffs against same defendant to recover damages for injuries sustained allegedly through negligence of defendant were consolidated. This Court saw no error.
In
Pridgen v. R. R., supra,
tbe consolidation of an action by an employee to recover for personal injuries sustained in a collision between tbe truck be was driving and tbe defendant’s railroad train with an action by the employer for damages to tbe truck was beld not to be error. Tbe Court, in opinion by
Brogden, J.,
stated: “Both cases grew out of tbe same injury and practically tbe same defenses were interposed.”
In
Hewitt v. Urich, supra,
Mrs. Claudia Hewitt and A. J. Hewitt, wife and husband, brought separate actions against defendant for damages for personal injuries each sustained in an automobile accident while they were riding as guests of defendant in an automobile owned and operated by him. Tbis Court beld that there was no error in consolidating tbe two actions for trial, citing
Fleming v. Holleman, supra,
and the first
Ins. Co. v. R. R., supra.
In
Baker v. R. R., supra,
an action for damages for wrongful death of Heber C. Baker, an “invited guest or passenger,” and an action by Jacob C. Williams for damages for personal injury sustained in collision between automobile operated by Williams and tbe dividing wall under one of defendant’s bridges, were consolidated for trial. Tbis Court disposes of tbe exception shown in record on appeal by saying, “As tbe two causes of action arose out of tbe same collision or same state of facts, for convenience, they were consolidated and tried together,” citing
Fleming v. Holleman, supra.
And in
Robinson v. Transportation Co., supra,
as tbe record shows, tbe trial judge ordered that five separate actions, instituted by different plaintiffs, in which each sought damages for personal injuries and one property damage, be consolidated and tried together. Tbis Court, in opinion by
Seawell, J.,
states : “Tbe exception to tbe consolidation of tbe cases for tbe purpose of trial is without merit. In tbis State tbe power of tbe trial court to consolidate cases for convenience of trial is not confined to cases between tbe same parties, but extends to cases by tbe same plaintiff against several defendants and cases by different plaintiffs against tbe same defendant, where tbe causes of action grow out of tbe same transaction and tbe defense is tbe same.
Abbitt v. Gregory,
201
N. C., 577, 593, 594. McIntosh, Practice and Procedure, 536, 539. The liability of the defendants, if any, to the several plaintiffs in this action grew out of the same alleged negligent acts and the defense is the same. There is no apparent prejudice to the defendants in the consolidation of these actions which might interfere with the discretion of the court in making the order.”
Further, in the cases of
Hewitt v. Urich, supra,
as shown by the record on appeal, and in
Abbitt v. Gregory, supra,
cited in the
Robinson case, supra,
the orders for consolidation were made in each instance by the judge of his own mere motion, that is,
ex mero motu.
Moreover, where error is assigned on the ground of improper consolidation, injury or prejudice arising therefrom must be shown to sustain the exception. McIntosh on N. C. P. & P., p. 536;
In re Will of Atkinson, supra.
The decisions of this Court appear to be in harmony with the majority of cases in other jurisdictions. See Annotation 104 A. L. R., 62, on subject “Propriety of Consolidation for trial of actions for personal injuries, death or property damage arising out of the same accident.”
In the light of the principles enunciated in these authorities, as applied to the facts alleged on the pleadings here, it is not apparent from the record that appellant is injured or prejudiced by the order of consolidation. As alleged, all four actions grow out of the same accident and practically the same defenses are interposed.
It is contended, however, that since order of consolidation is based upon the finding of the judge that “the four above named plaintiffs were riding as passengers at the time of the collision,” which is not supported by the record, the order should be reversed. The finding is of necessity based upon the pleadings, and if in conflict with the pleading, the latter will control. In ány event, the pleadings do shoy that the four were riding in the truck and it is not alleged that either of them was operating the truck at the time of the collision. Hence, for purpose of the question presented as to consolidation of the actions, the finding that they were passengers may be disregarded as immaterial.
As to the contention of appellant that there is such substantial difference in the pleadings as will seriously complicate these cases to its prejudice, a similar point was raised before, and considered by this Court in
Martin v. R. R.,
148 N. C., 259, 61 S. E., 625, and, under such conditions, the Court was of opinion that there was no error in the order of consolidation. We are of like opinion here.
After careful consideration of all reasons advanced by appellant, in the light of pertinent authorities, we fail to find error in the order of consolidation.
Affirmed.