It is agreed that the sole question for this court’s determination is whether a common carrier of passengers may be joined as a defendant with the operator of another vehicle with which one of the carrier’s vehicles collided, in an action brought by a passenger of such carrier for injuries alleged to have proximately resulted from the independent concurrent acts of negligence of the carrier and the owner of such other vehicle. The railway company in support of its demurrers to the petitions urges that as a common carrier of passengers it owed to Rose Meyer the duty of exercising the highest degree of care; that
“Joint liability for tort only lies where wrongdoers have acted in concert in the execution of a common purpose and where the want of care of each is of the same character as the want of care of the other.'’’ (Emphasis supplied.)
The opinion and paragraph three of the syllabus of the Brenner case are based upon the concept that joint liability arises only from the commission of a joint tort, i. e., the joint commission of a single wrongful or tortuous act. This is in accord with the early English view. In the strict sense, “joint tort” originates in action of the mind, volition, concert of action, common purpose. The conclusion that joint liability can arise only from joint tort fails to recognize the more modern authorities which consider the fact that independent concurrent acts may produce or result in a single injury.
It was in this beclouded atmosphere of thought concerning joint tort and joint liability that reference was made in the Brenner case to the necessity of the “want of care of each” being “of the same character as want of care of the other” to justify joinder of defendants. (Emphasis supplied.) “Joint liability,” which is referred to in paragraph three of the syllabus in that case and which it was said cannot exist unless the want of care of the wrongdoers is of the same character, is there referred to in the sense of
This principle is recognized in the opinion in Wery v. Seff,
“The rule recognized by the majority of courts is that when the negligence of two or more persons concur to produce a single indivisible injury, such persons are jointly and severally liable, and the existence of common duty, common design or concerted action is Hot GSSGIltl&l ^ ^
In 1 Cooley on Torts (4 Ed.), 277, Section 86, the author states:
“The weight of authority will, we think, support the more general proposition, that, where the negligence of two or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design or concerted action.” Citing decisions from many states. See, also, Prosser on Torts, 1092, Section 109 et seq.
In Ohio, as in most states, there is a well defined purpose of the courts to avoid multiplicity of suits, in law as well as in equity, and to permit, so far as possible, all issues to be adjudicated in one action. That motive prompted the enactment in 1853 of Section 35 of the “Act to Establish a Code of Civil Procedure” (51 Ohio Laws, 57). That section reads:
That identical language appears today in Section 11255, General Code.
For nearly one hundred years the courts of Ohio have struggled with the problem of proper joinder of defendants under the above-quoted provision of the Code. It has been quite definitely established that joinder is not permitted where one of the defendants would be primarily liable and the other secondarily liable and this prohibition extends to those to whom the rule of respondeat superior applies and where the liability of one of the defendants would arise exclusively from the application of that rule.
See Clark v. Fry,
In a number of cases decided by this court, defendants have been joined on the theory that they were concurrent tort-feasors, rather than joint tort-feasors in the strict sense, including Cincinnati Street Ry. Co. v. Murray, Admx.,
This opinion will not be burdened with citation of numerous cases from other states. The right to join defendants who concurrently committed independent torts having causal connection with the injuries or damages sustained is recognized by the following:
Colegrove v. New York & New Haven Rd. Co. (1859),
“A passenger injured by a collision resulting from the concurrent negligence of two railroad corporations may maintain a joint action against both.”
Flaherty, Admx., v. Minneapolis & St. Louis Ry. Co. (1888),
Kinley v. Hines (1927),
Glazener v. Safety Transit Lines, Inc. (1929),
Peters v. Johnson (1928),
The right of joinder of defendants is not governed by the respective degrees of care which the law requires to be exercised by the wrongdoers toward the injured person. The extent or character of the duty owed by each to the injured person is not controlling. The duty owed the plaintiff by each of the defendants is a matter to be covered by the trial judge in the charge to the jury. If two or more persons have concurrently committed independent wrongful acts each having proximate causal connection with the injury or damage complained of, each of such persons has such interest in the controversy adverse to the injured person as to warrant joinder of such persons as defendants in an action brought by the injured or damaged person. This conclusion necessitates overruling the third paragraph of the syllabus of Stark County Agricultural Society v. Brenner, an Infant.
For the reasons hereinabove stated it is concluded that the defendants herein were properly joined and the judgment of the Court of Appeals is, therefore, affirmed.
Judgment affirmed.