
    Sylvania Development Co. v. Start et al.
    
      Pleading — Misjoinder of causes of action and parties — Petition charged defendants jointly but answer showed defendants acted separately — Error to direct verdict where evidence showed each defendant liable — Misjoinder may be raised by answer or motion to elect, when — Proper procedure to require election, and not to direct verdict, when.
    
    1. Where petition charged defendants jointly, answer showing that defendants acted separately in alleged trespasses on plaintiff’s premises held to raise questions of misjoinder of causes of action and misjoinder of defendants.
    2. Where bill of exceptions contained evidence tending to show liability of each defendant, the court erred in directing a verdict for defendants on the grounds of misjoinder of causes of action and misjoinder of defendants.
    3. Misjoinder of causes of action or of defendants, when not appearing upon the face of the petition, may be raised by answer, or, when it first appears by the evidence, by motion to elect.
    
      4. When misjoinder of causes of action or of defendants appears after evidence has been introduced tending to show liability of defendants, the proper procedure is not to render a directed verdict against plaintiff, but to require an election.
    (Decided April 11, 1927.)
    Error: Court of Appeals for Lucas county.
    
      Mr. W. W. Campbell and Mr. Otto L. Hankison, for plaintiff in error.
    
      Mr. W. K. Gardner and Mr. Leger J. Metzger, for defendants in error.
   Richards, J.

The original action was commenced in the court of common pleas by the Sylvania Development Company to recover damages claimed to have been caused by the defendants unlawfully entering upon its premises, doing certain excavating and digging of trenches and runways, and piling debris on its property. The action was dismissed by the plaintiff as to Roy C. Start, and on the trial in the court of common pleas a verdict was directed for the defendants Alexander Construction Company and George Gradel.

The only controversy in this court arises out of the contention by the defendants that there was a misjoinder of causes of action and of parties defendant in the trial court. The amended petition charges that the defendants committed the trespasses of which complaint is made, but it does not show on its face any misjoinder of causes of action or of parties defendant. The defendants answered separately. The answer filed by the Alexander Construction Company, after making certain admissions, denies all other averments, and this would amount to a denial that any joint trespass had been committed. The answer of this defendant, however, goes farther, and avers that it was engaged in moving a building located on the premises of the defendant Start, under a contract with him, that these premises were adjacent to the premises described in the plaintiff’s amended petition, and that the defendant Gradel was engaged in the work of excavating on the premises of Start under an independent subcontract made with this defendant. The answer further avers that the defendant company was granted permission to excavate a trench along the easterly side of plaintiff’s premises, which it did, and that the defendant Gradel was granted permission to excavate a runway across the front line of plaintiff’s premises to aid him in moving earth excavated from the Start premises, and the answer shows that the defendants were acting separately and not jointly. The answer filed by the defendant George Gradel is in substantially similar form, and we have no doubt that these answers raise, among other things, the question of a misjoinder of causes of action and a misjoinder of defendants.

The bill of exceptions contains no evidence tending to show that the defendants acted jointly in whatever they did, or that either acted under the direction or at the request of the other. On the contrary, it shows that each proceeded independently of the other, and that whatever Gradel did was as an independent contractor. It contains evidence tending to show the existence of a cause of action against each of the defendants Gradel and the Alexander Construction Company, but not a joint cause of action against them. City of Mansfield v. Bristor, 76 Ohio St., 270, 81 N. E., 631, 10 L. R. A., (N. S.), 806, 118 Am. St. Rep., 852, 10 Ann. Cas., 767.

When the plaintiff rested its case, the defendants moved the court for a directed verdict, which was granted, and judgment has been rendered thereon. As the bill of exceptions contains evidence tending to show liability of each defendant, the court was in error in granting the motion for a directed verdict. When misjoinder of causes of action or of defendants does not appear upon the face of the petition, the issue may be raised by answer, or, when it first appears by the evidence, by motion to elect, in which case the proper procedure is not to render a directed verdict against the plaintiff if evidence has been introduced tending to show liability of tbe defendants, bnt to require an election. French, Adm’r., v. Central Const. Co., 76 Ohio St., 509, 81 N. E., 751, 12 L. R. A., (N. S.), 669; Village of Mineral City v. Gilbow, 81 Ohio St., 263, 273, 90 N. E., 800, 25 L. R. A., (N. S.), 627 ; Copper River & N. W. Ry. Co. v. Heney (C. C. A.), 211 F., 459.

In the last case cited the rule is stated by the court, on page 462, as follows:

“But if it had been true, as contended by the defendants, that misjoinder was disclosed by the plaintiff’s evidence, that fact, it is clear, would not entitle the defendants to a directed verdict in their favor. Their remedy was to move the court at the conclusion of the testimony to require the plaintiff to elect as against which of the defendants he would proceed.”

For the reasons given, judgment must be reversed and the cause remanded for further proceedings in accordance with this opinion.

Judgment reversed and cause remanded.

Williams and Lloyd, JJ., concur.  