Vasu v. Kohlers, Inc., 30078.

Citation61 N.E.2d 707,145 Ohio St. 321
Decision Date31 May 1945
Docket NumberNo. 30078.,30078.
PartiesVASU v. KOHLERS, Inc.
CourtUnited States State Supreme Court of Ohio

145 Ohio St. 321
61 N.E.2d 707


No. 30078.

Supreme Court of Ohio.

May 31, 1945.

[61 N.E.2d 709]

Syllabus by the Court.

1. If the owner of a single cause of action arising out of a single tortious act brings an action against his tort-feasor, he may have but one recovery; and, in case he fails to recover, he may not maintain a subsequent action on the same cause of action, even though he has failed to include his entire cause of action or elements of damage in his original action.

2. If an owner of a single cause of action has a recovery thereon, the cause of action is merged in the judgment; but if he fails to recover on his claimed cause of action and judgment goes against him, such judgment is res judicata and a bar to a second action on the same cause of action.

3. A cause of action based upon negligence arises where there exists such an aggregation of investitive and operative facts as, under the substantive law, clothes the plaintiff with a specific primary right and the defendant with a corresponding duty as to such right, and a delict or wrong on the part of the defendant violating the duty and interfering with the right which results in consequential damages to the plaintiff.

4. Injuries to both person and property suffered by the same person as a result of the same wrongful act are infringements of different rights and give rise to distinct causes of action, with the result that the recovery or denial of recovery of compensation for damages to the property is no bar to an action subsequently prosecuted for the personal injury, unless by an adverse judgment in the first action issues are determined against the plaintiff which operate as an estoppel against him in the second action.

5. A right, question or fact in issue which was necessarily determined by a court of competent jurisdiction in a judgment which has become final, cannot be disputed or litigated in a subsequent suit between the same parties, although the subsequent suit is based upon a different cause of action.

6. Where an injury to person and to property through a single wrongful act causes a prior contract of indemnity and

[61 N.E.2d 710]

subrogation as to the injury to property, to come into operation for the benefit of the person injured, the indemnitor may prosecute a separate action against the party causing such injury for reimbursement for indemnity monies paid under such contract.

7. Parties in privy, in the sense that they are bound by a judgment, are those who acquired an interest in the subject matter after the beginning of the action or the rendition of the judgment; and if their title or interest attached before that fact, they are not bound unless made parties.

8. A grantor or assignor is not bound, as to third persons, by any judgment which such third persons may obtain against his grantee or assignee adjudicating the title to or claim for the interest transferred unless he participated in the action in such manner as to become, in effect, a party.

Appeal from Court of Appeals, Mahoning County.

Action by one Vasu against Kohlers, Inc., for personal injuries sustained in collision between plaintiff's automobile and defendant's truck. A judgment for plaintiff was reversed by the Court of Appeals, which entered final judgment in favor of defendants, and plaintiff appeals.-[Editorial Statement.]

Judgment of the Court of Appeals reversed and cause remanded to that court with directions.

On August 12, 1940, plaintiff, operating an automobile, title to which was in the name of his daughter, but by stipulation of the parties for the purpose of this lawsuit, conceded to be owned by him, came into collision with a truck of the defendant in the city of Youngstown, in which collision he suffered personal injuries and also damage to his automobile.

At the time of the collision the plaintiff had coverage of a $50 deductible collision policy on his automobile, written by the Federal Insurance Company as the carrier. On October 15, 1940, the Federal Insurance Company paid the plaintiff the sum of $313.49, covering the damage to his automobile, whereupon, in accordance with a provision of the policy, the plaintiff assigned to the insurance carrier his entire claim for such damage.

On February 13, 1942, the Federal Insurance Company commenced an action, being case No. 112394, in Mahoning county Common Pleas Court, against Kohlers, Inc., the defendant in this case, to recoup the money paid by it to cover the damage on Vasu's automobile.

On August 6, 1942, Vasu, the plaintiff, commenced this action in the Common Pleas Court of Mahoning county against the defendant, Kohlers, Inc., to recover for personal injuries which he suffered in the same collision.

Both cases pended in the same court until March 2, 1943. On that date a verdict was rendered for defendant in the Federal Insurance Company's case against Kohlers, Inc., which verdict was reduced to judgment and became final. By stipulation in the present action, in lieu of the introduction in evidence of the record of the action of the Federal Insurance Company against the defendant, it was agreed ‘that a policy of collision insurance was written covering said automobile with the Federal Insurance Company in the name of said daughter, as assured; that following the accident involved in this case the said insurance company made payment for the damage to said automobile, in accordance with the provisions of said policy, and that thereupon any claim against the defendant herein on account of said damages was assigned by said daughter to the Federal Insurance Company, * * * that the issues submitted to the jury in said cause No. 112394 involved solely the question of the negligence of the defendant and the contributory negligence of the plaintiff in this case, as the operator of said automobile, and the issues of proximate cause in connection therewith, the amount of the monetary damage to said automobile in said case having been stipulated to be in the amount of $313.49.’

On May 11, 1943, an amended answer was filed by the defendant, setting out as a bar to this action the judgment in its favor in case No. 112394, prosecuted by the Federal Insurance Company against it. The plaintiff filed a ‘demurrer and motion’ to strike out this defense. The trial court sustained it and gave leave to amend. On June 1, 1943, a second amended answer was filed omitting allegations as to such judgment. This action went to trial resulting in a verdict in favor of the plaintiff in the sum of $6,000, upon which judgment was entered. The defendant's

[61 N.E.2d 711]

motions for directed verdict, for judgment notwithstanding the verdict, and for new trial were overruled.

An appeal to the Court of Appeals on questions of law was prosecuted by the defendant, it being claimed that the trial court erred in sustaining the motion of the plaintiff to strike out of defendant's answer the defense of res judicata claimed by the defendant to have arisen by reason of the judgment in its favor against the claim of the insurance company, as assignee of the plaintiff, covering the damage to plaintiff's automobile. The Court of Appeals reversed the judgment of the Common Pleas Court and entered final judgment in favor of the defendant.

The case is now in this court for review by reason of the allowance of plaintiff's motion to certify the record.

William E. Pfau and Jacob Levy, both of Youngstown, for appellant.

Robert J. Nicholson, of Youngstown, for appellee.

HART, Judge.

The question presented by this record may be stated as follows: Where one suffered both personal injuries and property damage by reason of a single negligent act and assigned his property damage claim against the tort-feasor to a third person who prosecuted an action thereon against the tort-feasor, will a judgment in such action on such property damage claim in favor of the tort-feasor bar a subsequent action against the same tort-feasor brought by such injured person to recover damages for his personal injuries?

If a tortious act and the resultant damage to both person and property create in the injured person but a single right of action, and consequently a single cause of action, then the answer must be in the affirmative. It is everywhere conceded that a single cause of action cannot be split into several claims and separate actions maintained thereon. Cockley v. Brucker, 54 Ohio St. 214, 226, 44 N.E. 590;City of Cincinnati v. Emerson, 57 Ohio St. 132, 139, 143, 48 N.E. 667;Secor v. Sturgis, 16 N.Y. 548. If the owner of a single cause of action arising out of a single tortious act brings an action against his tort-feasor, he may have but one recovery; and, in case he fails to recover, he may not maintain a subsequent action on the same cause of action, even though he has failed to include his entire cause of action or elements of damage in his original action. Stein v. The Prairie Rose, 17 Ohio St. 417, 93 Am.Dec. 631;Hydrick v. St. Louis, I. M. & S. R. Co., 118 Ark. 402, 177 S.W. 5, L.R.A.1916B, 742;McCaffrey v. Carter, 125 Mass. 330;Nathans v. Hope, 77 N.Y. 420;Pierro v. St. Paul & N. P. Ry. Co., 39 Minn. 451, 40 N.W. 520,12 Am.St.Rep. 673. In the case of recovery, the cause of action is merged in the judgment, Brigel v. Creed, 65 Ohio St. 40, 60 N.E. 991, and in case of failure to recover, the judgment is res judicata and a bar to a second action based upon the same cause of action between the same parties. 30 American Jurisprudence, 914, Section 172. If, therefore, one who suffers both property damage and personal injuries by the same wrongful act has but a single cause of action against the wrongdoer, an adverse judgment against him on his property damage claim would be a bar to a subsequent action for his personal injuries. For like reason, if the owner of a single cause of action arising out of a single tortious act assigns an assignable part of his cause of action to another, a recovery or a failure to recover by such other, as assignee, on...

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