324 N.E.2d 759 | Ohio Ct. App. | 1974
The plaintiff, an employee of the Baltimore Ohio Railroad Company (hereinafter referred to as the railroad), filed a complaint against the railroad under the Federal Employees' Liability Act,
The railroad's argument raised by its single assignment of error may be summarized as follows: While there is, admittedly, no contribution between joint tortfeasors in this jurisdiction, there is a right of indemnification from one primarily or (it is argued) "actively" liable to one held secondarily or "passively" liable, and the instant appeal presents such primary-secondary or "active-passive" dichotomy entitling the railroad to have the allegations in its third party complaint considered. This argument assumes that at the stage of proceedings at which the action of the trial court arrested matters, the railroad must be considered the secondary-passive agent since all it is accused *188 of is the failure to furnish a safe place to work; whereas, the appellee school-bus driver who is charged with negligently driving the school bus onto the intersection where it was struck by the train must be considered the primary-active agent of the injury.
We have reviewed the arguments and authorities advanced by the railroad in support of his position, but have concluded that the law of Ohio was properly stated by the trial court, and no error attended its application in granting judgment to the appellee. It is clear beyond doubt that while Ohio does not permit contribution among joint tortfeasors (Royal Indemnity Co. v.Becker,
A second situation permitting indemnification is one where animplied contract of indemnification may be said to exist. (Maryland Casualty Co. v. Frederick Co.,
Other examples may be added to the foregoing: an owner was held in damages for the dangerous condition of his property caused by the negligent or tortious act of his tenant or other person in temporary charge and occupancy (Maryland Casualty Co. v.Frederick Co., supra); the liability of the owner of a restaurant was termed "vicarious" or "secondary" (The GlobeIndemnity Co. v. Schmitt,
All of the Ohio decisions cited to us as relevant to the issue on appeal appear to fall within one or another of the above categories. Exemplifying relationships variously described as "primary and secondary" (Losito v. Kruse, supra, at 187) or inexactly and unhelpfully characterized as "active and passive" (see Ohio Fuel Gas Company v. Pace Excavating Co., supra, at 190 for an example of troubled semantic backwaters resulting from the use of these two adjectives). or described as concurrentbut neither joint, nor independent tortfeasors (MarylandCasualty Co. v. Frederick Co., supra, at 610-612), or generally as "vicarious" relationships, these cases illustrate instances where the right of indemnity is held appropriate. It is apparent that in all of them the uniting thread is the existence of a common duty toward or a common goal affecting the injured party shared by two or more persons or entities not otherwise acting in concert or in pari delicto. Where, under such circumstances, one of the tortfeasors "did not participate in the act or omission causing the injury" (Maryland Casualty Co. v. Frederick Co., supra, paragraph 1 of the syllabus), or perhaps where his participation is indirect, implied, or remote, his liability will be deemed "secondary" and the law willimply an agreement of indemnity from the other participating person primarily liable.
If, on the other hand, the two are acting in concert, and are in pari delicto, then, they become joint tortfeasors between whom no contribution is allowable. If not acting in concert. if they also do not share a common duty to-ward *190 or common goal affecting the injured party, they become merelyindependent tortfeasors whose negligence concurs to produce an injury, without the right of contribution or indemnification. We think the instant appeal falls within the latter category of cases.
The duty of the railroad toward the plaintiff was to furnish him with a safe place to work. However the breach of this duty may be particularized by the plaintiff on a trial of the issues, it does not seem to us conceivable that it could ever be shared or made common with the duty owed by Burer toward the plaintiff, to yield the right of way, to keep a proper lookout, and to heed warning signals at an intersection. The only "common duty" of the railroad and Burer toward the plaintiff that we can comprehend is the universal duty not to wrongfully injure him, but the common duty of the world not to commit a tort against the plaintiff's person is not the sort of common duty which gives rise to a right of indemnification between otherwise independent tortfeasors whose negligence happens to concur to produce the injury. The two duties, one to furnish a safe place to work and the other to observe the law of railroad crossings, are, in fact, independent, and where there exists a concurrent breach of those independent duties, as alleged here, joint and several liability arises, but without contribution or indemnification between the concurrent tortfeasors. Meyer v.Cincinnati Street Railway Co.,
It follows that the trial court did not err in granting appellee's motion for a judgment on the third party complaint, and appellant's assignment of error is accordingly not well taken and is denied.
The judgment of the Court of Common Pleas of Butler County, Ohio, is affirmed.
HESS, P. J., and SHANNON, J., concur. *191