American Ins. Co. v. Ellsworth Freight Lines, Inc.

• Citation: 178 N.E.2d 819,113 Ohio App. 426
• Parties: , 17 O.O.2d 485 AMERICAN INSURANCE CO., Appellant, v. ELLSWORTH FREIGHT LINES, INC., Appellee.
• Decision Date: 09 May 1960
• Court: United States Court of Appeals (Ohio)

Page 426

113 Ohio App. 426

178 N.E.2d 819, 17 O.O.2d 485

AMERICAN INSURANCE CO., Appellant, v. ELLSWORTH FREIGHT LINES, INC., Appellee.

Court of Appeals of Ohio, Sixth District, Lucas County.

May 9, 1960.

Syllabus by the Court

1. Whether the provisions of the Summary Judgment Act, Section 2311.041, Revised Code, are applicable to actions commenced prior to the effective date of such act is open to serious question.

2. Notwithstanding the rule against the splitting of causes of action, an insurer who, in compliance with his contract of insurance, has taken an assignment or become subrogated to that portion of the claim of its insured against a defendant for property damage, is not estopped to prosecute an action in its own behalf against such defendant by reason of the fact that the insured has prosecuted an action and recovered damages for personal injury against such defendant.

Harold C. Moan, Toledo, for appellant.

William A. Finn and Thomas J. Manahan, Toledo, for appellee.

FESS, Judge.

This is an appeal on questions of law from a judgment overruling a motion of plaintiff for a summary judgment and sustaining defendant's motion for summary judgment.

In as much as the Summary Judgment Act was enacted without the saving clause within the purview of the provisions of Section 1.20, Revised Code, there is serious question whether such act is applicable to a pending action. Schlagheck v. Winterfeld, 108 Ohio App. 299, 161 N.E.2d 498. However, the respective parties, at the hearing on the appeal, in effect have stipulated that the matter be determined either as if the Summary be determined either cable or that the judgment be regarded as one for judgment on the pleadings. It is to be noted that the judgment was rendered as upon summary judgment without the taking of testimony or the filing of affidavits and could have been decided only upon the admissions in the pleadings. Furthermore, the judgment contains no finding that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law as contemplated by the provisions of Section 2311.041, Revised Code.

Plaintiff brought its action against the defendant as assignee of one Frank M. Fagg, its insured, for recovery of property damage to the latter's automobile, in the sum of $1,145 and costs.

In its amended answer, defendant admits that prior to the date of the accident plaintiff had issued the policy of insurance to plaintiff's insured, covering the automobile owned by the insured, covering the automobile in excess of $50, and that following the collision plaintiff paid to its insured the sum of $1,145 in return for which the insured assigned to plaintiff any and all claims for damage to the automobile to the extent of the amount so paid by plaintiff, and that plaintiff is subrogated to the right of its insured to such extent. For its second defense, defendant alleges the recovery of a judgment upon a verdict in the United States District Court by plaintiff's insured for personal injuries, which judgment was paid and satisfied by defendant. Defendant alleges further that the action brought by the insured constituted a full and final adjudication of any and all claims of the insured arising out of the collision, including any and all claims or portions of claims assigned by the insured to plaintiff, and that the issues in the case are res judicata and bar plaintiff from maintaining the action.

Plaintiff's reply admits the rendition of the judgment in the District Court but alleges that the insured, Frank M. Fagg, prayed only for damages as a result of injuries to his person; that after a trial of such cause, a verdict and judgment were rendered for Frank M. Fagg and that such judgment was paid and satisfied by the defendant herein; plaintiff says, however, that said petition did not contain a prayer for damages to the automobile of Fagg either as to the uninsured loss of Fagg or the subrogated interest of the plaintiff herein; plaintiff says further that the verdict and judgment in said action are res judicata as to the liability of the defendant herein but denies that plaintiff is barred from maintaining this action as a result thereof.

Plaintiff filed its motion for a summary judgment in its favor as prayed for in its petition. In turn, defendant filed its motion for a summary judgment dismissing the action on the ground that there is no genuine issue as to any material fact and that the defendant is entitled to judgment as a matter of law.

It at once becomes apparent that the determination of this appeal depends upon the interpretation of the import of the recent decision of Rush v. City of Maple Heights, 167 Ohio St. 221, 147 N.E.2d 599, squarely holding:

'Where a person suffers both personal injuries and property damage as a result of the same wrongful act, only a single cause of action arises, the different injuries occasioned thereby being separate items of damage from such act. (Paragraph four of the syllabus in the case of Vasu v. Kohlers Inc., 145 Ohio St. 321, 61 N.E.2d 707, 166 A.L.R. 855, overruled.)'

It is a well-settled general rule that the owner of a cause of action will not be permitted to divide or split that cause of action so as to make it the subject of several suits. Sturges v. Burton, 8 Ohio St. 215; Ferguson v. Gilbert & Rush, 16 Ohio St. 88; James v. Allen County, 44 Ohio St. 226, 6 N.E. 246; Cockley v. Brucker, 54 Ohio St. 214, 44 N.E. 590; Dick, Ex'x, v. Hyer, 94 Ohio St. 351, 114 N.E. 251; Vasu v. Kohlers, Inc., 145 Ohio St. 321, 61 N.E.2d 707, 166 A.L.R. 855; Rush v. City of Maple Heights, 167 Ohio St. 221, 147 N.E.2d 599; Petitt v. Morton, 11 Ohio Law Abst. 168 (affirmed, 124 Ohio St. 241); Boswell v. Security Life Ins. Co., 26 Ohio Cir.Ct.R., N.S., 385, 35 Ohio Cir.Dec. 313. And if one brings a suit for a part only of his claim or cause of action, and recovers thereon, his entire cause of action is merged in the judgment, which then becomes a bar to a second action based upon the same cause of action between the same parties. Ewing v. McNairy & Clafflin, 20 Ohio St. 315; Vasu v. Kohlers, Inc., supra; Rush v. City of Maple Heights, supra. In other words, when a matter is finally determined by a competent tribunal, it is to be considered at an end, not only as to what was determined, but also as to every other question which the parties might have litigated in the case. Petersine v. Thomas, 28 Ohio St. 596; Pollock v. Cohen, 32 Ohio St. 514; Strangward v. American Brass Bedstead Co., 82 Ohio St. 121, 91 N.E. 988; Norwood v. McDonald, 142 Ohio St. 299, 52 N.E.2d 67; Vasu v. Kohlers, Inc., supra; Charles A. Burton, Inc. v. Durkee, 162 Ohio St. 433, 123 N.E.2d 432; State ex rel. Ohio Water Service Co., v. Mahoning Valley Sanitary Dist., 169 Ohio St. 31, 157 N.E.2d 116. The rule is based upon the idea of preventing unreasonable vexation of a defendant, Vasu v. Kohlers, Inc., supra, and on the expediency of accomplishing the ends of justice by a single and speedy decision of all the rights and contentions of the parties. Covington & Cincinnati Bridge Co. v. Sargent, 27 Ohio St. 233; Roby v. Rainsberger, 27 Ohio St. 674; North River Ins. Co. v. Redman, 16 Ohio Law Abst. 516, affirmed 128 Ohio St. 615, 193 N.E. 347. Cf. Kelley Island Lime & Transport Co. v. City of Cleveland, 47 F.Supp. 533, 25 Ohio Opinions 162.

The rule against splitting causes of action has likewise been applied in Ohio to actions ex delicto as well as ex contractu, and only a single action may be brought for a single act of negligence and separate actions may not be brought to recover for each element of damage. State ex rel. Weinberger, v. Industrial Commission, 139 Ohio St. 92, 97, 38 N.E.2d 399 (obiter but citing authorities).

But with respect to a single tort causing injury to both person and property, it was held in Vasu v. Kohlers, Inc., supra, referred to as obiter dicta in Rush v. Maple Heights, supra, that injuries to both person and property suffered by the same person as a result of the same wrongful act were infringements of different rights and gave rise to distinct and separate causes of action which might be separately prosecuted, contrary to the rule followed in a majority of the states maintaining the view that a single wrongful or negligent act or omission causing an injury to both person and property of the same individual constitutes but a single cause of action with separate items of damage proceeding from the same wrong, with the result that a recovery of a judgment for either item of damages may be pleaded in bar in an action to recover for the other item. 64 A.L.R. 663, 127 A.L.R. 1081.

Ohio has now definitely adopted the majority rule in Rush v. Maple Heights, supra. As stated by the editor of the annotation appearing in 62 A.L.R.2d 988, unquestionably the most important effect of the single cause of action rule is that it bars one who has sustained simultaneous personal injury and property loss from the same cause and who has prosecuted to judgment a suit for either of his two elements of damage from thereafter suing to recover for the remaining element.

However, in some jurisdictions in which the single cause of action rule is followed, an exception has been drawn to the rule in cases in which one element (usually property loss) of the insured party's damage is the subject of insurance and strict compliance of the single cause principle would be prejudicial to the interests of either the insured or insurer. Travelers Indemnity Co. v. Moore (1947), 304 Ky. 456, 201 S.W.2d 7; Underwriters at Lloyd's Ins. Co. v. Vicksburg Traction Co. (1913), 106 Miss. 244, 63 So. 455, 51 L.R.A.,N.S., 319; General Exchange Ins. Corporation v. Young (1948), 357 Mo. 1099, 212 S.W.2d 396; Underwood v. Dooley (1929), 197 N.C. 100, 147 S.E. 686, 64 A.L.R. 656; Vasu v. Kohlers, Inc., 145 Ohio St. 321, 61 N.E.2d 707, 166 A.L.R. 855...