Losito v. Kruse
| Decision Date | 03 January 1940 |
| Docket Number | 27573. |
| Citation | 136 Ohio St. 183,24 N.E.2d 705 |
| Parties | LOSITO v. KRUSE et al. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. When, under the doctrine of respondeat superior, a master becomes liable in damages for personal injuries caused solely by the negligent act of his servant, the latter is primarily liable and the former secondarily liable to the injured party; and if the master is obliged to respond in damages by reason of such liability, he will be subrogated to the right of the injured party and may recover his loss from the servant, the one primarily liable.
2. Where a liability arises against both a master and his servant in favor of a party injured by the sole negligence of the latter while acting for the master, such injured party may sue either the servant, primarily liable, or the master secondarily liable, or both, in separate actions, as a judgment in his favor against one, until satisfied, is no bar to an action against the other, the injured party being entitled to full satisfaction from either the master or servant or from both.
3. In such latter case, if the injured party makes partial settlement with and releases the master, secondarily liable to him for such injuries, such settlement may be pleaded as a pro tanto satisfaction but will not bar his action to recover the remainder of his damage for such injuries from the servant, primarily liable.
Appeal from Court of Appeals, Cuyahoga County.
On March 11, 1936, Arthur Kruse, Jr., an appraiser of damaged motor vehicles, acting for The Schaefer Body, Inc., of Cleveland, motored to Painesville to inspect a damaged truck. At the invitation of Kruse, Louis Losito, plaintiff, who was interested in the damaged truck, accompanied him. On the return trip, while passing through the village of Wickliffe the automobile, operated by Kruse, collided with a light pole at the roadside resulting in injuries to Losito which are the basis of his claim in this action.
The record shows a stipulation to the effect that 'the liability of The Schaefer Body, Inc., if any, arose out of the alleged negligent conduct of Arthur Kruse, Jr., and that at the time the accident complained of by the plaintiff occurred, said Arthur Kruse, Jr., was the agent of Schaefer Body, Inc., and acting within the scope of his employment.'
Suit was filed by Losito first against Kruse and later, by amended petition, against both The Schaefer Body, Inc., and Kruse alleging that at the time Losito was injured he 'was riding as a passenger at the request of and for the benefit of the defendants in an automobile then being driven and operated by the defendants along said highway,' and that his injuries were 'due to the negligence of the defendants.' Separate answers were filed by each of the defendants.
Before trial, Losito entered into a written agreement with The Schaefer Body, Inc., by which, in consideration of the sum of $225 paid by it to him, he covenanted not to sue it on account of his injuries and to dismiss his action against it. By the same agreement Losito reserved his right to prosecute his claim for the same injuries against all other persons. Thereupon, The Schaefer Body, Inc., was dismissed from the action for want of prosecution.
The defendant Kruse, by leave of court, filed an amended answer in which, among other things, he set out the settlement made between the plaintiff and the defendant, The Schaefer Body, Inc., as above noted, and alleged that since 'the only manner in which said claim did or could arise against said Schaefer Body, Inc., was by virtue of the relationship of master and servant existing between said Schaefer Body, Inc., and this defendant [Kruse] * * * the satisfaction of any claim of said plaintiff against said Schaefer Body, Inc., also satisfied, liquidated and discharged any alleged claim that said plaintiff may have had against this defendant.'
The plaintiff filed a reply admitting the covenant not to sue the defendant, The Schaefer Body, Inc., but asserting that the settlement in question was not in full satisfaction of his claim, as to which he made an express reservation.
A motion of the defendant Kruse for judgment on the pleadings and stipulations was sustained, and the plaintiff's amended petition dismissed by the trial court. On appeal, this judgment was reversed by the Court of Appeals and the case remanded. The case is now in this court for review by reason of the allowance of a motion to certify the record.
Wm. M. Byrnes, Wm. A. Kane, and Frank J. Kus, all of Cleveland, for appellant.
Copperman, DeBard & Greenwood, of Cleveland, for appellee.
This record presents the question as to whether a compromise settlement with a master for injuries caused solely by his servant while acting within the scope of the latter's employment, is a complete bar to an action of the injured party against such servant for the same injuries, or only a pro tanto credit on the claim of such injured party against the servant which may be set off by the jury.
The answer to this question depends upon the nature and character of the relationship of the parties against whom the liability is asserted. Concurrent but related tort-feasors constitute a class wherein one who commits a wrong is so related to another as to make such other also liable for the commission of such wrong. The liability of one tort-feasor for wrongs committed solely by another arises in the following situations:
1. Where a retailer is held in damages for the sale of unwholesome food which was prepared and sold to him by a wholesaler without disclosure of its condition. Kniess v. Armour & Co., 134 Ohio St. 432, 17 N.E.2d 734, 119 A.L.R. 1348; Canton Provision Co. v. Gauder, 130 Ohio St. 43, 196 N.E. 634.
2. Where a municipality is held in damages for the dangerous condition of its streets or sidewalks caused solely by the negligent acts of an abutting property owner or another, resulting in injury to a person lawfully using such street, such dangerous condition having been permitted to remain after notice to the municipality. Bello v. City of Cleveland, 106 Ohio St. 94, 138 N.E. 526; Village of Mineral City v. Gilbow, 81 Ohio St. 263, 90 N.E. 800, 25 L.R.A., N.S., 627; Morris v. Woodburn, 57 Ohio St. 330, 48 N.E. 1097; City of Zanesville v. Fannan, 53 Ohio St. 605, 42 N.E. 703, 53 Am.St.Rep. 664.
3. Where one employs an independent contractor to do work for him, the necessary or probable effect of the negligent performance of which will be to injure third person. Clark v. Fry, 8 Ohio St. 358, 72 Am.Dec. 590; Hughes v. Cincinnati & S. Ry. Co., 39 Ohio St. 461; Pittsburgh, C. & St. L. Ry. Co. v. Shields, 47 Ohio St. 387, 24 N.E. 658, 8 A.L.R. 464, 21 Am.St.Rep. 840. See, also Drennen Co. v. Jordan, 181 Ala. 570, 61 So. 938, 23 A.L.R. 984.
4. Where one as principal or master delegates a course of action to his agent or servant, who, while acting within the scope of his authority or employment as to such course of action, commits a tortious act resulting in injury to a third person. Pickens & Plummer v. Diecker & Bro., 21 Ohio St. 212, 8 Am.Rep. 55; Passenger R. Co. v. Young, 21 Ohio St. 518, 8 Am.Rep. 78; Elms v. Flick, 100 Ohio St. 186, 126 N.E. 66; Edelstein et al., Partners v. Cook, 108 Ohio St. 346, 140 N.E. 765, 31 A.L.R. 1333; Cowley v. Bolander, 120 Ohio St. 553, 166 N.E. 677; Babbitt v. Say, Adm'r, 120 Ohio St. 177, 165 N.E. 721.
Conceding in the instant case that the defendant, Arthur Kruse, Jr., acted negligently, he and his employer, The Schaefer Body, Inc., fall within the last above named division of concurrent but related tort-feasors. Between them, as between tort-feasors in all the above named classes, there exists a primary and secondary liability ot the injured party. In any such case the primary liability, to the extent of full compensation, rests upon the party who actually commits the wrong, while the secondary...
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