STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (a Corporation), Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; HELEN CORRICK et al., Real Parties in Interest, 47 Cal. 2d 428

SPENCE, J. Petitioner seeks a writ of mandate to compel respondent court to sever its declaratory relief action from certain personal injury actions and to proceed first with the trial of its declaratory relief action. It contends that respondent court abused its discretion (1) in ordering the consolidation for trial of the declaratory relief action and the personal injury actions; and (2) in failing to order that the declaratory relief action be tried prior to the trial of the personal injury actions. (Code Civ.

Proc., § 1062a.) We have concluded that petitioner’s position should be sustained as to the first point but not as to the second point. Petitioner commenced a declaratory relief action against its policyholder Collins to determine whether its policy covered a collision of two automobiles, one of which was operated by Collins. Persons riding in both cars were injured. While the declaratory relief action was pending, several personal injury actions were filed against Collins. The personal injury actions were at issue and were consolidated for a jury trial.

Thereafter the declaratory relief action was set for trial, with a jury as demanded by defendants, and for the same day previously set for trial of the personal injury actions. Petitioner’s motion to vacate the order for a jury trial in the declaratory relief action was denied, and defendants’ motion to consolidate that action with the personal injury actions was then granted. The trial date for the personal injury actions was not a date certain but the time when the eases should be ready for trial and thereafter would “trail,” subject to being called for assignment when a department was available.

Petitioner concedes that “actions may be consolidated, in the discretion of the court, whenever it can be done without prejudice to a substantial right.” (Code Civ. Proc., § 1048.) However, as petitioner contends, the consolidation here does result in such prejudice to petitioner. In seeking damages against Collins for their injuries, the riders in his car charged him with both negligence and wilful misconduct but did not allege their status, whether passengers or guests, at the time of the accident.

Petitioner’s policy provided that there was no coverage while the insured’s automobile was “used as a public or livery conveyance, or used for carrying persons for a charge,” with the exception of persons sharing expenses, going to and from work or school.

The order for consolidation puts petitioner in an inconsistent position for argument of the status of Collins’ riders in the consolidated actions: (1) in the declaratory relief action petitioner would be urging on its own behalf that Collins’ riders were passengers “for a charge” within the meaning of the policy; but (2) in defending Collins in the personal injury actions, petitioner would be urging on Collins’ behalf that his riders were guests within the meaning of the guest statute, so that Collins would be liable only in the event of proof of wilful misconduct. (Veh. Code, §403; Pennix v.

Winton, 61 Cal.App.2d 761 [143 P.2d 940, 145 P.2d 561].) The tests for determining these respective issues in the actions thus consolidated would not be the same. A person may be a traveler for “compensation” under the guest law but not necessarily a “passenger” for “consideration” or “for a charge” under an insurance policy. (Western Mach. Co. v. Bankers Indem. Ins. Co., 10 Cal.2d 488, 490-491 [75 P.2d 609]; Porter v. Employers etc.

Corp., Ltd., 40 Cal.App.2d 502, 506-510 [104 P.2d 1087].) Substantially the same evidence might be involved in the adjudication of these issues, but petitioner would be forced into contradictory arguments based upon conflicting testimony, or at least upon conflicting inferences arising from the evidence, with regard to these distinguishable relationships. Moreover, the consolidation would unquestionably confuse the jury in determining under differing tests set out in the instructions the consequences of any particular factual situation which the jury might find to exist.

Petitioner does not now challenge the propriety of respondent’s granting a jury trial in the declaratory relief action. The general rule is stated in 13 American Law Reports 2d at page 778: “. . . if the issues of fact arising would have been triable by a jury as of right in an action which might have been substituted for the declaratory judgment action by either party, then there is a right to jury trial on such issues. ’ ’ While Kaliterna v.

Wright, 94 Cal.App.2d 926 [212 P.2d 32], appears to hold that, regardless of the circumstances, the court in a declaratory relief action may dispose of all factual issues without a jury, such view fails to preserve the distinction between, legal and equitable issues, and it must be disapproved. (See Robinson v.

Puls, 28 Cal.2d 664, 665-666 [171 P.2d 430].) In short, the “courts will not permit the declaratory action to be used as a device to circumvent the right to a jury trial in cases where such right would be guaranteed if the proceeding were coercive rather than declaratory in nature.” (15 Cal.Jur.2d, §43, pp. 172-173; see Pacific Electric Ry. Co. v. Dewey, 95 Cal.App.2d 69, 71-72 [212 P.2d 255]; Mallarino v.

Superior Court, 115 Cal.App.2d 781, 784 [252 P.2d 993].) However, petitioner properly complains of the order for consolidation here in that it provides for the trial of both the declaratory relief action and the personal injury actions before the same jury.

The fact of Collins’ liability insurance would thus be disclosed to the jury which would be determining the issues involved in the personal injury actions, a circumstance which is generally held a matter of prejudice. (See cases collected: 11 So.Cal.L.Rev. 407; 21 So.Cal.L.Rev. 227.) It is therefore clear that the declaratory relief action and the personal injury actions could not be consolidated for trial “without prejudice to a substantial right” of petitioner, and that the trial court abused its discretion in ordering such consolidation.

Mandate lies to control judicial discretion when that discretion has been abused. (Hays v. Superior Court, 16 Cal.2d 260, 265 [105 P.2d 975]; Simmons v. Superior Court, 96 Cal.App.2d 119, 132 [214 P.2d 844, 19 A.L.R.2d 288]; Gromeeko v. Superior Court, 114 Cal.App.2d 754, 757 [251 P.2d 29].) “In a legal sense discretion is abused whenever in the exercise of its discretion the court exceeds the bounds of reason, all of the circumstances before it being considered.” (Berry v. Chaplin, 74 Cal.App.2d 669, 672 [169 P.2d 453].) An order of consolidation is not appeal-able (Code Civ.

Proc., § 963) but is reviewable only upon appeal from a subsequent judgment, which remedy would not be adequate under the circumstances above reviewed. (I.E.S. Corp. v. Superior Court, 44 Cal.2d 559, 564 [283 P.2d 700] ; see Phelan v. Superior Court, 35 Cal.2d 363, 370 [217 P.2d 951].) We therefore conclude that petitioner is entitled to a writ of mandate ordering respondent to sever its declaratory relief action from the personal injury actions. However, petitioner may not insist that the declaratory relief action be tried first.

The entertainment of such action and the granting of declaratory relief are matters within the discretionary power of the court. (Code Civ. Proc., § 1061; Hannula, v. Hacienda Homes, Inc., 34 Cal.2d 442, 448 [211 P.2d 302, 19 A.L.R.2d 1268].) It is true that it is provided that such actions “shall he set for trial at the earliest possible date and shall take precedence of all other cases, except older matters of the same character and matters to which special precedence may be given by law.” (Code Civ. Proc., § 1062a.) But said

section 1062a does not purport to override the discretionary power given to the trial court to “refuse to exercise the power granted by this

chapter in any ease where its declaration or determination is not necessary or proper at the time under all the circumstances.” (Code Civ. Proc., § 1061.) The trial court therefore had, and still has, the discretion to determine whether the declaratory relief action should be entertained “at the time under all the circumstances.” In the present case, the personal injury actions were at issue and set for trial before the declaratory relief action was at issue. In our view,

section 1062a was never intended under such circumstances to compel the trial court to delay the trial of the coercive actions until after the trial of the declaratory relief action merely because the coercive actions might involve the determination of the same or a somewhat similar issue. Any conclusion to the contrary would permit the use of an action for declaratory relief as a device to delay the trial of any such coercive action previously at issue and set for trial.

We therefore conclude that the trial court could have properly determined in its discretion, and may still determine following the severance, that the granting of declaratory relief is not “necessary or proper at the time under all the circumstances.” There is therefore no basis for the issuance of a writ of mandate commanding the trial court to order the trial of the declaratory relief action prior to the trial of the personal injury actions.

Let a peremptory writ of mandate issue but solely for the purpose of commanding respondent court to sever for trial petitioner’s declaratory relief action from the personal injury actions hereinabove discussed. Gibson, C. J., Shenk, J., Traylor, J., Schauer, J., and McComb, J., concurred.