Rush v. City of Maple Heights, 35170

• Decision Date: 29 January 1958
• Docket Number: No. 35170,35170
• Parties: , 4 O.O.2d 279 RUSH, Appellee, v. CITY OF MAPLE HELGHTS, Appellant.
• Court: Ohio Supreme Court

Page 221

167 Ohio St. 221

147 N.E.2d 599, 4 O.O.2d 279

RUSH, Appellee, v. CITY OF MAPLE HELGHTS, Appellant.

No. 35170.

Supreme Court of Ohio.

Jan. 29, 1958.

Syllabus by the Court

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.)

This cause was commenced in the Court of Common Pleas of Cuyahoga County as an action to recover damages for personal injuries resulting from a fall while plaintiff, appellee herein, was riding on a motorcycle over a street in defendant city of Maple Heights, appellant herein.

In her second amended petition, plaintiff alleges that on or about September 20, 1951, she was a passenger on a motorcycle operated by her husband and proceeding in an easterly direction on Schreiber Road within the limits of Maple Heights at a speed of not more than 20 miles per hour, when she was thrown to the ground and injured.

She alleges further that the defendant was negligent in failing to keep Schreiber Road in good repair and free from unisance, in suffering large holes, 'bumps' and 'dips' to exist in the regularly traveled portion of the street, and in failing to erect warning signs giving notice of the unsafe and dangerous condition of Schreiber Road; that the city had notice; and that her injuries were caused directly and proximately by the negligence of the defendant city.

She then alleges:

'Thereafter the plaintiff herein, Lenore Rush, duly filed an action for damage to personal property in the Municipal Court of Cleveland, Ohio, being cause number A 241 307 on the docket of said court, against the defendant herein, the city of Maple Heights. The cause proceeded to trial on or about the 23rd day of March 1954, the Municipal Court of Cleveland rendered its judgment in favor of the plaintiff therein, Lenore Rush and against the defendant therein, the city of Maple Heights. Thereafter upon the motion of the defendant, the city of Maple Heights the Municipal Court of Cleveland rendered its findings of fact and conclusions of law as follows:

'The court finds that the city of Maple Heights had actual notice of the condition of Schreiber Road.

'That the city was negligent in nor repairing the hole complained of in plaintiff's petition.

'That such negligence on the part of the city was the proximate cause of the damages sustained by plaintiff in the amount of $100.

'Conclusions of law.

'Judgment for plaintiff in the amount of $100.

'Thereafter on April 19, 1954, the Municipal Court of Cleveland duly overruled the motion of the defendant the city of Maple Heights for a new trial, whereupon the defendant therein filed its notice of appeal to the Court of Appeals in and for Cuyahoga County, Ohio. After the filing of briefs therein and oral argument thereto, the Court of Appeals on or about the 17th day of December 1954 affirmed the judgment of the Municipal Court of Cleveland in favor of the plaintiff, Lenore Rush and against the defendant therein, the city of Maple Heights and directed that a special mandate issue to the Municipal Court of Cleveland in order to carry the judgment into execution.

'Thereafter the defendant therein, the city of Maple Heights filed its motion to certify the proceedings to the Supreme Court of Ohio. After the filing of briefs therein and oral argument thereto, the Supreme Court of Ohio on or about the 21st day of February 1955 denied the motion to certify and affirmed the judgment of the Court of Appeals and the Municipal Court of Cleveland in favor of the plaintiff, Lenore Rush and against the defendant the city of Maple Heights.

'* * *

'The plaintiff in cause number A 241 307 in the Municipal Court of Cleveland is the same Lenore Rush who is the plaintiff herein; the defendant in cause number A 241 307 in the Municipal Court of Cleveland is the same city of Maple Heights, defendant herein. The allegations of negligence in cause number A 241 307 in the Municipal Court of Cleveland are the same as the allegations of negligence hereinbefore set forth. The issue of negligence is therefore res judicata between the parties hereto.'

Plaintiff then filed a motion for an order setting the cause for trial 'on the issue of damages alone for the reason that the liability of the defendant has been determined heretofore by the Supreme Court in case number A 241 307 on the docket of the Municipal Court of Cleveland.'

In its answer, defendant denies plaintiff's allegations charging it with negligence.

Relative to the effect of the previous action between the parties in the Cleveland Municipal Court, the defendant answers as follows:

'* * * defendant admits the filing of a lawsuit by plaintiff against defendant in Cleveland Municipal Court and that plaintiff obtained judgment therein, but this defendant denies that said Cleveland Municipal Court judgment is controlling herein.

'Defendant further denies for want of knowledge that the damage used for in the Cleveland Municipal Court case and the injuries sued for herein allegedly arise out of the same incident, i. e., a fall from a motorcycle striking a hole in the street.'

Defendant's answer admits further that it appealed from the judgment of the Municipal Court to the Court of Appeals and to the Supreme Court as alleged by plaintiff and denies for want of knowledge that plaintiff was injured at the time and place or in the manner and to the extent described in plaintiff's petition.

After a pretrial conference, the motion of plaintiff for an order setting this cause for trial on the issue of damages only was sustained, and the case was assigned for trial. A jury was empanelled, and the case submitted.

The court charged the jury that it was not to be 'concerned with the issues of defendant's negligence, proximate cause or plaintiff's contributory negligence,' because those issues were resolved favorably to the plaintiff and against the defendant in another action between the same parties in the Cleveland Municipal Court, and that the action in that court did not involve a claim for bodily injury, and under the law plaintiff had the right to bring her separate action for personal injuries in the Court of Common Pleas.

The court charged that, as a matter of law, if the plaintiff was involved in this accident on September 20, 1951, and suffered injuries as the proximate result thereof, the defendant would be legally responsible to the plaintiff for whatever injuries she sustained in that accident; that she was required to prove affirmatively, by the preponderance of the evidence, 'that she was a passenger upon a motorcycle, operated by her husband on Schreiber Road, in the city of Maple Heights, Ohio, on or about September 20, 1951, and that such motorcycle was involved in an accident by striking a hole in said street, and she must further prove that she was injured in said accident and, if so, the extent of such injury; and that such injuries, if any, were the direct and proximate result of such accident.'

The jury returned a verdict for the plaintiff in the amount of $12,000.

An appeal was perfected to the Court of Appeals, which affirmed the judgment.

The cause is in this court upon the allowance of a motion to certify the record.

Elmer R. Vanek and Austin T. Klein, Cleveland, for appellant.

Owen Calvin Neff, Cleveland, for appellee.

HERBERT, Judge.

The eighth error assigned by the defendant is that 'the trial and appellate courts committed error in permitting plaintiff to split her cause of action and to file a separate action in the Cleveland Municipal Court for her property damage and reduce same to judgment, and, thereafter, to proceed, in the Cuyahoga County Common Pleas Court, with a separate action for personal injuries, both claims arising out of a single accident.'

Other facets of this question have been before the court before.

In the case of Vasu v. Kohlers, Inc., 145 Ohio St. 321, 61 N.E.2d 707, 709, 166 A.L.R. 855, plaintiff operating an automobile came into collision with defendant's truck, in which collision he suffered personal injuries and also damage to his automobile. At the time of collision, plaintiff had coverage of a $50 deductible collision policy on his automobile. The insurance company paid the plaintiff a sum covering the damage to his automobile, whereupon, in accordance with a provision of the policy, the plaintiff assigned to the insurer his claim for such damage.

In February 1942, the insurance company commenced an action in the Common Pleas Court of Mahoning County against Kohlers, Inc., the defendant in the reported case to recoup the money paid by it to cover the damage to Vasu's automobile.

In August 1942, Vasu commenced an action in the same court against Kohlers, Inc., to recover for personal injuries which he suffered in the same collision.

In March 1943, in the insurance company's action, a verdict was rendered in favor of the defendant, followed by judgment.

Two months later an amended answer was filed in the Vasu case, setting out as a bar to the action for recovery of damages for the personal injuries suffered by plaintiff the judgment rendered in favor of defendant in the insurance company case. A motion to strike that defense having been sustained, a second amended answer was filed omitting allegations as to such judgment. A trial of the action resulted in a verdict for plaintiff, upon which judgment was entered.

On appeal to the Court of Appeals the defendant claimed that the Court of Common Pleas erred in sustaining plaintiff's motion to strike from the defendant's answer the defense of res judicata claimed to have arisen by reason of the judgment in favor of the defendant in the action by the insurance company.

The Court of Appeals reversed...