148 N.E. 233 | Ohio | 1925
Lead Opinion
The question is here clearly presented whether the provisions of Section 11273, General Code, preclude the bringing of an action in a county of this state against the persons and companies enumerated in that section by a resident of another state for injuries to person or property occurring elsewhere than in this state, where the injury complained of resulted from the joint negligence of a railroad company and another corporation against which the action is maintainable in such county of this state.
If this suit were against the Baltimore Ohio Railroad Company alone there would be no question here, for that was decided in the case of Loftus v. Pennsylvania Rd. Co.,
As stated by Shauck, J., in Maumee Valley Railways LightCo. v. Montgomery,
"If the collision resulted solely from the negligence of the Interurban Company the liability should ultimately fall upon it. But that liability may be enforced in the same action as the liability of the Maumee Company for the breach of its contract. The original plaintiff was obliged neither to waive his right of action against either company nor to choose at his peril against which company he would bring his action. We are aware of no rule of law which requires several actions to determine the rights and liabilities of the parties in such a case. That they may be determined in one action appears fromMorris v. Woodburn,
The American Steel Wire Company being properly sued in Cuyahoga county, the Baltimore Ohio Railroad Company, under the averments of the petition, may be joined as a defendant by virtue of the provisions of Section 11255, General Code, unless by reason of the provisions of Section *572 11273, General Code, the former section can have no application to suits against such persons and companies as are enumerated in the latter section. Is it possible that the provisions of our statutes are now such that, where two parties jointly cause an injury, and an action may be maintained in this state against one, the other cannot be joined if it happens to be a person or company such as enumerated in Section 11273, General Code, but suit against such party must be separately maintained elsewhere or abandoned altogether? That would be the result if the contention of plaintiff in error be sustained, which it seems clear would not only be violative of the purposes of our Civil Code of Procedure to prevent a multiplicity of suits, but would nullify clear and express provisions of other statutes, particularly Section 11255, General Code, which provides:
"Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein."
This statute is not irreconcilably inconsistent with Section 11273, General Code, and the rule against repeals by implication requires that the provisions of Section 11255 be here applied.
The proviso portion of Section 11273, General Code, is the new part of that section, and constitutes the amendment made in 109 Ohio Laws, 81. Clearly it does not refer to any provision of any statute except that which immediately precedes it in the same section, and except as it modifies the provisions of Section 11276, General *573 Code, as stated in the Loftus case. The purpose of such amendment was quite evidently none other than to prevent the bringing of the class of actions specified against transportation companies at some point in this state distant from the place of injury and residence of the plaintiff. It clearly was not enacted in the interest of the plaintiff, for it prevented the selection of the forum by him, as permitted by the law prior to such amendment. It is a limitation upon the enforcement of a right of action, and therefore must be strictly construed, and all of the statutory provisions respecting venue are in pari materia, and must be read and construed together.
It is our conclusion that the provisions of Section 11273, General Code, do not preclude the maintenance of an action in a county of this state against a railroad company by a resident of another state for injuries to person or property, though occurring elsewhere than in this state, where the injury complained of resulted from the joint negligence of said railroad company and another corporation, which are joined as defendants, in an action which is properly brought against the latter defendant in such county.
The fear expressed by counsel that the view the majority of the court has taken in this case would tend to promote an evasion of the provisions of Section 11273, General Code, by joining employer and employe as codefendants, may be somewhat allayed by a consideration of the decision of this court in the case of French, Adm'r., v. Central Construction Co.,
"An action cannot be maintained jointly against master and servant for the wrongful and negligent act of the latter if in the particular case the master's liability for such wrongful and negligent act arises solely from the relationship between them under the doctrine of respondeat superior. Clark v. Fry,
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
MARSHALL, C.J., ALLEN and ROBINSON, JJ., concur.
JONES, DAY, and KINKADE, JJ., dissent.
Concurrence Opinion
I concur in the syllabus in this ease and the reasoning of the majority opinion. I desire to briefly address myself to the dissenting opinion. The dissenting opinion is based entirely upon an interpretation of Section 11273, without regard to any other existing sections of the General Code. If that section stood alone, and did not interfere with the administration of any other section of the General Code, the dissenting opinion would undoubtedly be correct. When the recent amendment of that section was enacted in 109 Ohio Laws, at page 81, no amendment or modification was made of Section 11255, General Code, providing for actions against joint defendants. If it should be found that there is such inconsistency between Section 11273, as amended, and Section 11255, that both could not stand and be administered at the same time, the *575
court might well declare an implication of repeal of Section 11255. It is admitted in the dissenting opinion that there can be no just claim of either express or implied repeal of Section 11255. It is admitted that that section still has an important function. This being true, rights under that section are just as important to litigants within the sphere of that section as are rights to litigants under Section 11273 within its sphere. In the case of Loftus v. Pennsylvania Rd. Co.,
Dissenting Opinion
Baillie, the plaintiff, was a nonresident of the state of Ohio. The accident occurred in the state of Pennsylvania. The American Steel Wire Company was a New Jersey corporation. It is conceded that the Baltimore Ohio Railroad Company could not be sued separately in the county of Cuyahoga. The claim is made that, while this is true, it may be sued in a joint action. This leads us to the consideration of Section 11273, General Code (109 Or. L., 81), the text of which may be found in the reported case of Loftus v. Pennsylvania Rd. Co.,
Section 11273, General Code, is a venue act applying purely to transportation companies. After providing that actions may be brought against this class of companies in any county through or into which the railroad passes or extends, it contains the following proviso: "Provided that all actions against" a railroad company for injuries to person or property or for wrongful death "must" be brought either in the county where the cause of action arose or where the claimant resided at the time. This proviso specifically excludes any right of action against a railroad company for injuries or death unless the suit is brought where the accident occurred or the plaintiff resided. This court now decides that the phrase "all actions" does not mean what it says; that, notwithstanding the legislative use of the phrase, some actions may still be brought as if the proviso were not specifically passed to exclude that right. The phrase "all actions" includes, not only an action brought against a *578 transportation company separately, but an action brought against it jointly. No claim is made that Section 11273, General Code, repeals Section 11255, General Code, either expressly or by implication. The latter section still applies to that multitudinous class of cases between private individuals, corporations, or even transportation companies, where injuries to person or property, or death, have not resulted. For this reason there was no need for the repeal of the latter section. But there is no escape from the conclusion that it is purely judicial legislation for a court to hold that some actions may be brought elsewhere when the Legislature has specifically stated that in this class of cases all actions must be brought where the accident occurred or the claimant resided.
This is in conformity to our unanimous decision in the case of Loftus v. Pennsylvania, Rd. Co., supra. We there held that Section 11273, General Code, excluded from the jurisdiction of the state courts "all causes against the persons and companies therein referred to for injuries to person or property or for wrongful death occurring without the state of Ohio unless such claimant is a resident of this state." This was settled in the first proposition of the syllabus, which determined that all causes were excluded from the state courts' jurisdiction. In that case the rationale of the decision supports the syllabus. The opinion at page 355 (140 N.E. 95), states:
"The proviso in Section 11273 includes 'all actions' against the classes of corporations referred to in the earlier part of that section. * * * If this court should place a construction upon the *579 language used which would not make it exclusive, then the word 'all' would be rendered entirely devoid of meaning. The plain unambiguous meaning to be given to the language employed makes it clear that the Legislature intended to deprive all persons from resorting to the courts of Ohio in cases against the companies named, whether foreign or domestic, unless the injuries to person or property, or the wrongful death, were caused in the state, or the claimant resides in the state."
The common pleas court was right in sustaining the motion of the railroad company to quash service upon it.
2. It must be conceded that the Loftus case, supra, has decided that the railroad company cannot be separately sued in Cuyahoga county. The effect of the majority decision is to hold it suable in that county only if there be a joint liability stated and proved. Obviously there are valid reasons why the majority's opinion should not be sustained. The common-law rule required that a joint judgment should follow a joint liability. Our statute has so modified this that a separate judgment could be rendered, where service has properly been made, if the proof disclose that the liability was several and not joint. However, in this case no such principle could possibly apply, for, if there be no joint liability, or if the American Steel Wire Company should be dismissed by the court, there could be no separate action against the railroad company, since the jurisdiction of the court under Section 11273, General Code, is then excluded under the decision of the Loftus case, supra. If it be conceded that the petition states *580
a joint cause of action because it alleges that "the defendants maintained and used a certain railroad switch track," the proof on the trial may disclose facts indubitably indicating that the cause of action, in fact, was not joint, or that there was no joint liability; that the tortious acts of the separate defendants were independent, concurrent, and related, but not joint. Morris v. Woodburn,
"The authorities already referred to establish the proposition that there can be no joint action unless there is joint liability and joint liability can only exist where there is concert of action in pursuit of a common intent. Where separate tortious acts have been separately done, and only a single injury inflicted, the parties must be sued separately."
Should the plaintiff in error continue to question the jurisdiction over his person under Section 11273, General Code, but compelled nevertheless to answer to the merits of the action, the testimony may develop that there was no joint, cause of action, or any liability, joint or several, proven against the American Steel Wire Company. In that respect it may follow the procedure designated in French, Admr., v.Central Construction Co.,
"The answer to this is that the fact of misjoinder does not affirmatively appear on the face, or from the allegations, of plaintiff's petition, but such fact was, for the first time, disclosed by the evidence which was introduced on behalf of the plaintiff."
The court held that the plaintiff having failed by his evidence to establish a joint liability, and that the evidence, if any, having disclosed a several and not a joint cause of action, the motion to elect which of the defendants he would further proceed against was properly sustained. Manifestly, if such a motion were made in a case of this character, the plaintiff could not elect to proceed against the railroad company, since the cause of action pleaded against the American Steel Wire Company, not being sustained, would be merely a subterfuge, having the sole purpose of bringing within the court's jurisdiction in Cuyahoga county a transportation company that he could not sue directly in a separate action. This unique situation, which would not ordinarily arise in other actions founded upon a joint liability, *582 necessarily requires that Section 11273, General Code, should be so construed as to include "all causes against the persons and companies therein referred to for injuries to person or property," a principle distinctly decided in the Loftus case,supra.
DAY and KINHADE, JJ., concur in the dissenting opinion.
