Ryan v. Mackolin

• Decision Date: 22 May 1968
• Docket Number: No. 40868,40868
• Citation: 237 N.E.2d 377,43 O.O.2d 326,14 Ohio St.2d 213
• Parties: , 43 O.O.2d 326 RYAN, Appellee, v. MACKOLIN et al., Appellants.
• Court: Ohio Supreme Court

Page 213

14 Ohio St.2d 213

237 N.E.2d 377, 43 O.O.2d 326

RYAN, Appellee, v. MACKOLIN et al., Appellants.

No. 40868.

Supreme Court of Ohio.

May 22, 1968.

Syllabus by the Court

1. Successive torts, separated and unrelated in time, place or source, constitute a 'series of occurrences' within the meaning of Section 2307.191, Revised Code, and a joinder of the tort-feasors as parties in one action by the party injured by the torts is permissible under that statute if a question of law or fact common to all the defendants is apparent from the pleadings.

2. Where a tort-produced bodily injury is compounded or aggravated by a subsequent tort, resulting in a single injury a common question of fact arises, within the purview of Section 2307.191, Revised Code, as to the contribution of each tort-feasor to the compounded injury and such tort-feasor may be joined in a single action so as to enable one trier of the facts to determine that portion of the injury which resulted from the acts or omissions of each defendant.

3. Section 2307.191, Revised Code, permits the joinder in one action of parties against whom relief is sought jointly, severally or in the alternative; but such joinder warrants several judgments only against independent tort-feasors, whose torts are not concurrent, and against each only to the extent and in the proportion that his default proximately contributed to the plaintiff's injury, the burden of proof of which remains upon the latter.

While Terrence Ryan was seated in his parked automobile on the evening of December 26, 1963, it was struck from the rear by a vehicle operated by Judson Carl Boley, Jr., and Ryan thereby incurred an injury to his back for which medical treatment and hospitalization were required.

On the morning of May 20, 1964, Ryan's automobile was again rear-ended, this time by Daniel Mackolin.

In his petition, Ryan alleges '(t)hat as a direct and proximate result of the collision of December 26, 1963, the plaintiff's back was rendered more unstable and susceptible to injury and that following the collision of May 20, 1964, and as a direct and proximate result of both said collisions, the plaintiff was hospitalized in Mt. Carmel Hospital on July 18, 1964, where a surgical procedure known as a hemi-laminotomy was performed with spinal arthrodesis with internal fixation and two plates and four bolts were attached to his spine, that he was discharged from the hospital on August 7, 1964, in a wheelchair * * * .'

Ryan joined both defendants in this action, claiming 'judgment against the defendants, either jointly or severally.' ¹ The Common Pleas Court sustained demurrers of the defendants based on 'misjoinder of parties-defendant, misjoinder of causes of action, and improper joinder of several causes of action against several defendants.' The Court of Appeals reversed. (9 Ohio App.2d 74, 222 N.E.2d 842.)

Sebastion, Fais, Durst & March and Rick E. Marsh, Columbus, for appellee.

Power, Griffith, Jones & Bell and William H. Schneider, Columbus, for appellant Mackolin.

Hamilton, Kramer & Myers and Joseph R. Hague, Columbus, for appellants Boley.

SCHNEIDER, Judge.

This is a case of initial consideration in Ohio. By authority of Section 2307.191, Revised Code, plaintiff has joined in one action two defendants whose alleged separate and unrelated torts caused his single, compounded injury. The pertinent portion of Section 2307.191 Revised Code, upon which plaintiff relies, reads as follows:

'(A) * * * All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A * * * defendant need not be interested in * * * defending against all the relief demanded. Judgment may be given * * * against one or more defendants according to their respective rights to relief, and against one or more defendants according to their respective liabilities.

'(B) The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom he asserts no claim and who asserts no claim against him, and may order separate trials or make other orders to prevent delay or prejudice.' (Emphasis supplied.)

This statute became effective August 26, 1963. However, joinder of causes not affecting all the parties to an action continued to be proscribed by Section 2309.06, Revised Code, ² until its repeal on July 20, 1965. Huggins v. John Morrell & Co., 176 Ohio St. 171, 198 N.E.2d 448. But, see Henderson v. Ryan, 13 Ohio St.2d 31, 233 N.E.2d 506. Compare, however, Darling v. Home Gas & Appliances, Inc., 175 Ohio St. 250, 193 N.E.2d 391, which recognized that joinder of master and servant as defendants was authorized by Section 2307.191, Revised Code, both parties being equally affected by the action. See State, ex rel. Flagg, v. City of Bedford, 7 Ohio St.2d 45, 218 N.E.2d 601.

Nevertheless, permissive joinder of parties was not further extended while the language of Section 2309.06, Revised Code, remained operative. Thus, in Summit-Portage Concrete & Supply Co. v. Hunter, 1 Ohio App.2d 545, 206 N.E.2d 10, the syllabus reads:

'The defendant-owner of premises that are being foreclosed by a holder of a mechanic's lien may not join, under the provisions of Section 2307.191, Revised Code, in that action by way of cross-petition the principal contractor and seek to recover from him damages for a claimed breach of contract in failing to complete the improvement within the cost and time limit set out in the original contract.'

The court, at page 547, 206 N.E.2d at page 12 found two requisites for proper joinder under Section 2307.191, Revised Code, viz., 'there must be asserted against the parties a right to relief arising out of a transaction as set out in the statute * * * (and) a common question of law, or fact * * *. Both factors must exist * * *. In addition, under Section 2309.06, Revised Code, the matter must affect all the parties to the action.' (Emphasis supplied.)

That decision was announced March 24, 1965, and Section 2309.06, Revised Code, was repealed, as we have noted, the 20th of July following. That sequence of events at least indicates an expression by the General Assembly of its disapproval of that statute's stringent effect.

In Henderson v. Ryan, supra (13 Ohio St.2d 31, 233 N.E.2d 506), we observed that Section 2309.05, Revised Code, ³ relating to joinder of causes of action and Section 2307.191, Revised Code, relating to joinder of parties are no longer controlled by the provisions of Section 2309.06, Revised Code.

'Thus, the Code no longer contains any impediment to the joinder of causes of action of the kind asserted by the plaintiff in this case. The statutory changes reflect a constantly developing policy in the pursuit of simplified pleading and procedure. To save time and to relieve court congestion, parties are encouraged, if not commanded, to litigate all their claims in one action, except to the extent that joinder of multifarious and complex issues would produce confusion and prejudice. Defendants and the courts are thus saved from vexation caused by multiple litigation.' ⁴ (13 Ohio St.2d 31, 38, 233 N.E.2d 506, 511.)

The joinder of defendants in the instant case is in accord with that policy and fully satisfies the statutory demands. The successive rear-end collisions constitute a 'series of occurrences' causing the injury for which plaintiff seeks recompense. The causal contribution of each defendant to the plaintiff's compounded injury is a question of fact common to all the parties and may more effectively be determined before one trier of the facts in a single action. If it becomes apparent that the proceedings will be tainted with injustice, the court is empowered, under subparagraph (B) of the statute to order 'separate trials or make other orders to prevent delay or prejudice.'

Both appellants urge that the decisions of the federal courts interpreting Rule 20 of the Federal Rules of Civil Procedure indicate that this court should reverse the Court of Appeals and disallow their joinder. Nevertheless, in three of the four federal personal injury cases cited by the parties here, joinder of independent successive tort-feasors was sustained. Poster v. Central Gulf Steamship Cor., 25 F.R.D. 18 (D.C., E.D.Pa.); McNeil v. American Export Lines, Inc., 166 F.Supp. 427 (D.C., E.D.Pa.); and Lucas v. City of Juneau, D.C., 127 F.Supp. 730 (successive tort-feasors severally, not jointly, liable).

In Poster, plaintiff's joinder of successive employers was permitted under Federal Rule 20, (the precursor of our statute under consideration here) where he alleged that he had contracted amebiasis caused by their negligence in suffering infected persons to prepare food and use the lavatory, even though the alleged wrongful act of the second defendant occurred three months after that of the first. The court reasoned that the claim for relief was based upon two occurrences of the same nature and that whether the employment of the infected persons was negligent was a question of fact common to both. Reference was made to McNeil, where the plaintiff successfully joined two employers for consecutive acts of negligence allegedly causing injury to his back.

Appellants lean heavily on Caygill v. Ipsen, 27 Wis.2d 578, 135 N.W.2d 284 (decided June 1, 1965). The drivers of two automobiles involved in separate collisions in different counties five months apart were joined as defendants. The plaintiff alleged that the trauma sustained in both accidents constituted a single indivisible injury for which the drivers of both cars were jointly and severally liable. The Supreme Court of Wisconsin, relying on Sections 261.01(11) and 263.04, Wis.Stats.,...