Schwartz v. Swan
211 N.E.2d 122 (Ill. App. 1965)

  • A married couple, Dorothy and Clarence Schwartz, and their sister-in-law Adelia were involved in a car accident with Swan.
  • Ten days later, Dorothy and Clarence were involved in another car accident, this time with Polivick and Bray.
  • Dorothy sued both Polvick and Swan together, since they were unable to determine which accident caused which medical problems.
    • Clarence joined the lawsuit, suing for loss of consortium.
    • Adelia joined the lawsuit for injuries stemming from the second accident.
  • Bray, Polvick, and Swan filed motions for severance of the complaints into separate lawsuits.
    • Bray and Polvick argued that issues involving two separate accidents would prejudice the right to a fair trial.
    • Swan argued that there were two separate causes of action, different defendants, different facts, and it would be two confusing to argue as one case.
  • The Trial judge severed the cases. There would be one case for the first accident and one case for the second accident.
    • The claims of the multiple plaintiffs were joined for each of the two cases.
  • The Trial Court for the first accident found for the defendants. The Schwartzs appealed on the basis that the cases should never have been severed.
  • The Appellate Court reversed and remanded for a new trial.
    • The Appellate Court found that since the complaint clearly asserts a liability arising out of the series of transactions alleged, Illinois State civil procedure authorizes the joinder of the defendants.
      • Unless you could show which of Dorothy’s injuries could be attributed to which accident with reasonable certainty.
    • The Court found that if you had two separate trials, the defense at both trials would be, “Dorothy’s injuries happened in the other accident.” It would be almost impossible for her to win a verdict.
      • The technical term for this is a whipsaw.
    • Illinois State Civil Procedure states that, “more than one judgment may be rendered in the same cause.” Meaning that it would be possible for the Trial Court to find some defendants liable and others not. Everybody would get a fair trial.
  • This case was decided on Illinois State civil procedure rules, but they are similar to the Federal rules. See Rule 20, Rule 21, and Rule 42.