Adams v. Lambert

Conn, J. In the trial court a verdict for $2,000 was rendered for the plaintiff against defendant The Clyde Kraut Company, and at the same time the jury rendered a verdict in favor of the defendant Richard Lambert. A judgment was entered on the verdict against the defendant company, from which it appeals on questions of law. In her amended petition, plaintiff stated that on or abodt November 6, 1948, she contracted with' defendant Richard Lambert, a poultry dealer in Fremont, Ohio, to kill, dress and deliver about 500 tur *334 keys to the defendant company, a corporation doing business as a cold storage warehouse company at Clyde, Ohio; that defendant Lambert killed, dressed, and delivered the turkeys to defendant company; that on or about November 8, 1948, plaintiff contracted with defendant company to freeze, keep and store such turkeys at an agreed price per month per hundred pounds; that the turkeys were delivered to defendant company on or about November 8, 1948; and that subsequently, to wit, on or about December 10, 1948. it was discovered that the turkeys had spoiled and become unfit for human consumption and plaintiff was compelled to sell the turkeys for the sum of one cent per pound. Plaintiff alleged further that the loss and damage she sustained was directly and proximately caused by the negligence of the defendants; that defendant Lambert was negligent in placing the turkeys in sealed cellophane bags before body heat had been removed from them; that they were not properly chilled before delivery to defendant company for cold storage ; that defendant company was negligent in failing to inspect the turkeys to see whether the body heat had been removed and in failing to chill or sharp-freeze them before attempting to freeze them; that defendant company stacked the turkeys in a large pile so that cold air could not circulate in and around them and the turkeys on the inside of the pile were not properly frozen; and that the defendant company failed to inspect the turkeys from time to time to ascertain whether they were being properly frozen, and marketable as a first class food product. The defendant company demurred to plaintiff’s amended petition on the ground of misjoinder of parties defendant and misjoinder of separate causes of action against the defendants. This demurrer was *335 overruled by the trial court and defendant company filed its answer admitting that it operates a storage plant and that plaintiff stored turkeys in its warehouse. The admissions were followed by a general denial and allegations charging plaintiff with contributory negligence, which it is alleged was the proximate cause of her loss. The alleged contributory negligence of plaintiff was denied in her reply. The defendant company moved for judgment on the opening statement of counsel, at the close of plaintiff’s evidence, and at the close of all the evidence. It moved also for a directed verdict on the ground that plaintiff assumed the risk and was guilty of negligence as a matter of law. It moved also for a judgment non obstante veredicto and for a new trial, all of which motions were overruled. The actions of the trial court in overruling the several motions and in overruling the demurrer of defendant company on the ground of misjoinder of parties and misjoinder of separate causes of action are assigned as error, together with an assignment that the verdict is against the manifest weight of the evidence. We will consider first the alleged error in overruling the demurrer of defendant company to plaintiff’s amended petition. It is contended by defendant company that on the face of the amended petition it appears that plaintiff had separate contracts with defendants, by the terms of which defendants were obligated to perform separately certain acts, each defendant having certain things to perform unlike those to be performed by the other; that there were no joint acts to be done by defendants; and that each proceeded as an independent contractor. On this premise, it is urged that there is a misjoinder of parties and “separate causes of action against the several defendants.” These considerations appear to overlook the nature *336 of the cause of action set up in the amended petition. This is not an action ex contractu as contended by defendant company. It is an action for damages, sounding in tort. A majority of the court is of the opinion 'that the amended petition shows on its face that the negligence of defendant Lambert was closely related to and merged with the negligence of defendant company, the proximate result of which produced a single and indivisible loss. It is not necessary that there be concert of action on the part of tort-feasors to make them jointly and severally liable when the loss is the proximate result of their concurring negligence. The courts favor the adjudication of all issues arising out of the same subject matter in one action and the avoidance of a multiplicity of suits, unless a party is prejudiced by such procedure. It is not apparent how defendant company sustained any prejudice by the joinder of which it complains. If the defendants were severally as well as jointly liable for alleged tortious misconduct, plaintiff could have brought her action separately against each, and a judgment against one could not be set up as a bar to any later action, although plaintiff could have but one satisfaction of her damages. Plaintiff sustained a single loss. This loss resulted proximately from the alleged tortious misconduct of defendants, as already pointed out. Were plaintiff to bring separate actions on the theory of nonjoinder and obtain a judgment and satisfaction thereof in one action, might not the judgment and its satisfaction be a' ■bar to her action against the other defendant, notwithstanding she did not receive full compensation for her loss? At least, under the more liberal rules of joinder that now prevail in Ohio, in comparison with the common law. and the early cases both before and since the adoption of the Code of Civil Procedure (51 *337 Ohio Laws, 57), plaintiff may not be required to run the risk or incur the expense entailed in bringing separate actions and thereby be deprived of such benefit as may accrue to her in proceeding against the defendants as joint tort-feasors. Although not acting in concert, the defendants are alleged to have acted in such close relationship to each other that their tortious acts inseparably merged to produce plaintiff’s loss and damage. Judicial opinion is divided as to the necessary elements of a joint tort. Some cases indicate that concert of action is a necessary element where a single injury results from separate acts. However, this test does not appear to be the present rule in Ohio. We call attention to Wery v. Seff, 136 Ohio St., 307, 25 N. E. (2d), 692. In that case, plaintiff sustained damages through the alleged combined negligence of defendants, who were a father and his minor son of the age of 15 years. The father had entrusted his motor vehicle to his son who was under the age specified in the statute. Each was charged with negligence. Demurrers were interposed by defendants on the ground of misjoinder of parties defendant and causes of action. The demurrers were sustained and the petition dismissed by the trial court. On appeal, the judgment was reversed by the Court' of Appeals, and its judgment was affirmed by the Supreme Court. Defendants contended in that case, as defendants do in the instant case, that tort-feasors may be joined only when they act in concert. However, in Ohio it appears that ‘ ‘ concert in the execution of a common purpose” is no longer the essence of joint liability in tort, as was held in Stark County Agricultural Society v. Brenner, An Infant, 122 Ohio St., 560, 172 N. E., 659, and earlier cases. Judge Zimmerman, in Wery v. Seff, supra, in commenting on the Stark County Ag *338 ricultural Society case, said the rule therein “is too narrowly stated.” We quote paragraph five of the syllabus of Wery v. Seff, sufra, as follows: “When two or more persons, under circumstances .creating primary accountability, directly produce a single, indivisible injury by their concurrent negligence, they are jointly and severally liable, even though there is no common duty, common design or concerted action. ” See, also, Blanton, Admr., v. Sisters of Charity, 82 Ohio App., 20, 79 N. E. (2d), 688; Micelli v. Hirsch, 83 N. E. (2d), 240; 30 Ohio Jurisprudence, 769, Section 46. Defendants filed separate answers, neither of which made objection to misjoinder of parties defendant or misjoinder of separate causes' of action. Neither defendant moved to require plaintiff to elect at the close of plaintiff’s case or at the close of all the evidence. If such motions were made, they could not have been properly granted, as neither the amended petition on its face nor the evidence disclosed inconsistent causes of action. Frederickson v. Nye, 110 Ohio St., 459, 144 N. E., 299, 35 A. L. R., 1163; Roberts v. Lee, 72 Ohio App., 235, 51 N. E. (2d), 108. Plaintiff could have brought an action on the contract she had with defendant Lambert, and a separate action on the contract with defendant company. In that event, in each action plaintiff as bailor would have had the burden of proving delivery of the turkeys and failure of their redelivery in good condition on demand. On failure to redeliver, the bailee in each case would have had the duty to go forward with the evidence. Having brought her action jointly in tort, she thereby made her election and was obliged to establish her claim of negligence by a preponderance of the evidence against one or both of the defendants. Ag *339 ricultural Ins. Co. v. Constantine, 144 Ohio St., 275, 58 N. E. (2d), 658; 5 Ohio Jurisprudence, 124, Section 30. It may be observed that the rule of nonjoinder as applied in those cases wherein tort-feasors incur as to a third party a primary and secondary liability, or where liability arises by virtue of the doctrine of respondeat superior, has no application in the instant case. Clark v. Fry, 8 Ohio St., 358, 72 Am. Dec., 590; Village of Mineral City v. Gilbow, 81 Ohio St., 263, 90 N. E., 800, 25 L. R. A. (N. S.), 627; Larson v. Cleveland Ry. Co., 142 Ohio St., 20, 50 N. E. (2d), 163; Albers, Admr., v. Great Central Transport Corp., 145 Ohio St., 129, 60 N. E. (2d), 669. The majority of the court concludes that the assignment of error predicated on misjoinder should not be sustained. The record discloses that there is credible evidence supporting one or more of the specifications of negligence on the part of defendant company and it does not appear that the verdict is manifestly against the weight of the evidence. We have considered the remaining assignments of -error and are of the opinion that they should not be sustained. The focal point of these assignments is the claim of defendant company that the turkeys were not properly killed in preparation for storage and were not in good condition when delivered to defendant company. On this issue, there is some conflict in the evidence. It is undisputed, however, that the turkeys which were delivered in cartons and stacked or ricked by defendant company preparatory for freezing in a manner permitting the circulation of air were in good condition upon redelivery. On the other hand, the evidence shows or tends to show that the.turkeys delivered to' *340 defendant company in cellophane bags were stacked or piled against a wall in the storage room in such manner as to prevent the circulation of air in and around them, which tended to prevent prompt freezing. The evidence shows that defendant Lambert employed the same method in killing, cleaning and preparing each of the turkeys for delivery to the defendant company, excepting only the type of container, and. that they were delivered promptly, almost immediately following preparation. On the whole record it appears that a fact issue was presented to the jury and determined without prejudicial error, and that the trial court properly overruled the motions for judgment in favor of defendant company and the motion of defendant for a new trial. Judgment affirmed. Carpenter, J., concurs.