Ostrander v. Parker-Fallis Insulation Co.

• Decision Date: 02 February 1972
• Docket Number: No. 71-146,PARKER-FALLIS,71-146
• Citation: 278 N.E.2d 363,29 Ohio St.2d 72,58 O.O.2d 117
• Parties: , 58 O.O.2d 117 OSTRANDER, Appellee, v.INSULATION CO., Inc., Appellant; Lavelle, Appellee.
• Court: Ohio Supreme Court

Page 72

29 Ohio St.2d 72

278 N.E.2d 363, 58 O.O.2d 117

OSTRANDER, Appellee, v. PARKER-FALLIS INSULATION CO., Inc., Appellant Lavelle, Appellee.

No. 71-146.

Supreme Court of Ohio.

Feb. 2, 1972.

Appeal from the Court of Appeals for Lake County pursuant to the allowance of a motion to certify the record.

Plaintiff-appellee Ostrander brought this action to recover damages for personal injuries allegedly suffered when a motorcycle he was operating collided with a truck being operated by defendant-appellee Lavelle.

Pursuant to R.C. § 2307.191, then in effect, Ostrander joined appellant Parker-Fallis as a defendant, alleging that Lavelle was then employed by and acting for and on behalf of Parker-Fallis.

At the conclusion of plaintiff's case, Parker-Fallis moved to require plaintiff to elect as to defendants. The motion was overruled.

The jury returned a verdict of $25,000 in favor of plaintiff and against both defendants. Judgment was entered upon that verdict.

Nearly three months later upon Parker-Fallis' motion, the trial court entered an order finding that Lavelle was primarily liable to the plaintiff and that Parker-Fallis was secondarily liable. The Court of Appeals affirmed.

Donaldson, Colgrove, Cardinal & Freed and John Cardinal, Painesville, for appellee.

Green, Cronquist & Smith and Jack F. Smith, Cleveland, for appellant.

PER CURIAM.

We agree entirely with appellant's proposition of law to the effect that, although an alleged master and servant may be joined in the same action by one injured by reason of a claimed wrong by the alleged servant, a joint judgment may not be rendered against both. Larson v. Cleveland Ry. Co. (1943), 142 Ohio St. 20, 50 N.E.2d 163.

However, the subsequent determination of appellant's liability to be secondary by the trial court, pursuant to R.C. § 2307.191, ^* adequately preserved its 'right of indemnification from the party primarily liable, in case . . . (it) is obliged to respond in damages.' Larson v. Cleveland Ry. Co., supra (142 Ohio St. 20, 50 N.E.2d 163.)

Appellant's second proposition of law, to the effect that where the respective liabilities of joint defendants are primary and secondary, plaintiff should be required to elect whether he will proceed against the party primarily liable or the party secondarily liable is erroneous. It falls of its own weight because its foundation, i. e., the rule that such defendants may not be joined, was overruled in this state by the enactment of R.C. § 2307.191. See Darling v. Home Gas & Appliances (1963), 175 Ohio St. 250, 193 N.E.2d 391.

Finally, appellant contends that the evidence adduced at trial was insufficient to establish that Lavelle was acting in the course and scope of his employment. However, appellant filed only a partial bill of exceptions in the Court of Appeals. It was not certified as containing all of the evidence adduced on the issue of respondeat superior. In effect, appellant would have us shift the burden to appellee to complete the partial bill of exceptions when the challenge goes to the insufficiency of the evidence to support the judgment upon a particular issue. This is not the rule. See Lynch v. Doran (1968), 13 Ohio St.2d 9, 10, 233 N.E.2d 518. Cf. State, ex rel. Eges v. Corlett (1940), 137 Ohio St. 19, 27 N.E.2d 930.

The correct rule has been incorporated in Appellate Rule 9 with even greater specificity as follows: 'If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the weight of the evidence, he shall include in the record a transcript of...