
    Mayfield v. Kovac, Jr.
    (Decided January 26, 1932.)
    
      Mr. Earl J. Frase, for plaintiff in error.
    
      Messrs. Smoyer, Kennedy, Smoyer & Vogel, for defendant in error.
   Washburn, J.

In this case the common pleas court entered a judgment upon the pleadings in favor of the defendant.

The plaintiff filed a petition in the common pleas court against the defendant, and later, while that cause was pending, began an action in the municipal court against the defendant, and the latter case was tried and judgment entered in favor of the plaintiff; and then the defendant filed an amended answer in the common pleas court case claiming that the judgment in the municipal court was res judicata. A reply was filed, and then the court granted the motion of the defendant for a judgment upon the pleadings.

In determining whether or not it was error for the court to render such judgment, we must keep in mind the fact that a motion for a judgment on the pleadings is similar to a demurrer, for it raises only questions of law, and involves the substance rather than the form of the pleadings; and a court in passing upon such motion is required to liberally construe the pleadings in favor of the party against whom said motion is made and give to the party against whom the motion is made every reasonable inference deducible from the pleadings, and the court is not permitted to consider anything not shown by the pleadings. We must also keep in mind that a judgment rendered on the pleadings is a judgment on the merits, and, when sustained in favor of the one who makes the motion, results in a final judgment in his behalf. Rhoades v. McDowell, Recr., 24 Ohio App., 94, 156 N. E., 526.

The petition in this case sets forth that a collision occurred between an automobile owned and operated by the plaintiff and an automobile owned and operated by the defendant, and that in said collision the plaintiff suffered certain personal injuries, and that said injuries were caused by the negligent acts of the defendant.

The defendant, in his amended answer, raised the question of res judicata and alleged that on a date subsequent to the beginning of the action in the court of common pleas the plaintiff commenced an action against the defendant in the municipal court of Akron and set forth therein “the identical cause of action set forth by him in the petition herein, and praying for judgment against the defendant, Frank Kovac, Jr., for damages occasioned by the same collision herein sued upon. That service of summons was duly had in said cause upon the defendant, who, by order of the Municipal Court, defended said cause through guardian ad litem duly appointed therein. That said cause was heard before said court and tried upon its merits on the 21st day of February, 1930, and judgment was entered in said cause in favor of plaintiff and against the defendant, Frank Kovac, Jr., which judgment the defendant, Frank Kovac, Jr., paid and fully satisfied,” and that in said cause so brought and adjudicated in said Municipal Court “the issues involved in this cause were fully adjudicated and determined.”

In the reply filed to said amended answer, all of the allegations in reference to said issue of res judicata were denied, except that the plaintiff admitted “that there was a trial in the Municipal Court between the same parties for property damage growing out of the same accident which is the basis of this suit, and that judgment was recovered in said case for the plaintiff.”

It thus appears that the action in the common pleas court was brought to recover for personal injuries suffered by the plaintiff in said collision, and that the action in the municipal court was brought to recover damages for injuries to the property of plaintiff, and it is claimed that, as such injury to the person and property of the plaintiff was caused by a single negligent act, such negligent act and resulting injury gave rise to but a single cause of action, which should be presented for determination in a single suit, and that the plaintiff had no right to split said cause of action and bring a suit for the personal injury in the common pleas court and a suit for property damage in the municipal court.

There is a conflict in the authorities whether, under the circumstances indicated, such single tort gives rise to but a single cause of action, but the great weight of authority sustains the rule that a single tort which causes injury both to the person and property of an individual gives rise to but one cause of action, and that a single cause of action cannot be split into several actions.

We do not find that the question has been authoritatively settled in Ohio, but we think that the rule just indicated furthers simplicity and directness in the determination of controversial rights and tends to bring litigation to an end speedily and economically, and at the same time do substantial justice.

However, we think that it is equally well established by the authorities that the rule prohibiting the splitting of a cause of action is primarily for the benefit of the defendant, and that he may waive the same, and that, where two actions are brought when but one should have been brought, and the person against whom they are brought fails to interpose in the second action, and at the earliest opportunity, a plea in bar, or otherwise object to the trial of such action, and submits the case upon the merits, he will be held to have impliedly consented to the splitting of said single cause of action. Fox v. Althorp, 40 Ohio St., 322; Georgia Ry. & Power Co. v. Endsley, 167 Ga., 439, 145 S. E., 851, 62 A. L. R., 256; Southern Pac. Ry. Co. v. United States, (C. C. A.), 186 F., 737; Louisville Bridge Co. v. L. & N. Rd. Co., 116 Ky., 258, 75 S. W., 285; Cassidy v. Berkovitz, 169 Ky., 785, 185 S. W., 129.

In the instant ease there is no allegation in the pleadings that the defendant interposed any objection in the municipal court to the splitting of said cause of action or to the tidal of the action for property damage in that court, although the action for personal injury growing out of the same collision was begun first, and was then pending, in the common pleas court.

The law of res judicata is based upon the principle of estoppel, and it is well settled that, where a judgment is relied upon as an estoppel, the pleader must allege facts necessary to make the defense complete, and every fact essential to the estoppel must be alleged with certainty. In this case, the judgment in the municipal court would not constitute an estoppel if the defendant consented to the trial of that action separate and apart from the action then pending for personal injury; therefore, the fact that the defendant did not consent was a fact essential to the estoppel, and the defendant having failed to plead that fact, and the fair inference or presumption being to the contrary, his pleading did not state facts which constituted an estoppel, and the trial court was in error in determining from the pleadings that the judgment in the municipal court was a bar to plaintiff’s action in the common pleas court for personal injury resulting from such collision.

It is stated in the brief of the defendant that he did object in the municipal court to the splitting of said cause of action and to the trial of the action in the municipal court, because there was pending in the common pleas court an action to recover for personal injuries suffered in said collision, and there is some intimation that that question was duly presented to the municipal court and passed upon; and that gives rise to the query as to whether the defendant, by submitting to the municipal court the question of the right of plaintiff to split said cause of action and failing to prosecute error to the judgment of that court, has precluded himself from re-litigating that question in the common pleas court.

As to that, we, of course, express no opinion; but we call the attention of counsel to a decision of the Supreme Court of Washington, Brice v. Starr, 93 Wash., 501, 161 P., 347, wherein it was held that the pendency of another action growing out of the same transaction was ground for the abatement of the second action, but never for the abatement of the first action; and that a defendant against whom two actions arising from the same transaction were begun waived his right to object to splitting .the cause of action by failure to demur or plead in the second action to the pendency of the first, or by failure to appeal from an adverse judgment in the second action.

For error in granting the motion of the defendant and rendering judgment in his favor, said judgment is reversed, and the cause remanded.

Judgment reversed and cause remanded.

Pardee, P. J., and Funk, J., concur.  