
    No. 864
    OESTERLEIN MACHINE CO. v. CINCI. STORAGE BATTERY CO.
    Hamilton Common Pleas
    No. 199804.
    211. CAUSES OF ACTION — Where two causes of action are contained in a petition, one based on tort and the other on contract under a lease, the lease is necessarily involved in the first cause of action and the causes are joinable as being transactions connected with the same subject of action.
    Attorneys — E. R. Heisel for Machine Co.; Ritchie, Hermann & Ritchie for Battery Co.; all of Cincinnati.
   DARBY, J.

The Oesterlein Machine Co. as lessor, brought an action in the Hamilton Common Pleas against the Cincinnati Storage Battery Co. for damages caused by the alleged negligence of the Battery Co. in allowing water and acid to seen onto the Machine Company’s premises, both parties occupying the same building. The second cause of action was under the lease, it being claimed that the Battery Co. in using more than eight dollars worth of water per month breached the contract between the parties.

The Battery Co. demurred to the plaintiff’s petition on the ground that the two causes of action were not joinable; the first cause of action being based on tort and the second on contract. The Court, in overruling the demurrer, held:—

1. Under 11306 GC. causes may be joined if of the same transaction or transactions connecttd with the same subject of action.
2. The test is not whether or not one action be in contract and the other in tort, but whether they fall within the classes set forth in 11306 GC.
3. The transactions alleged are connected with the same subject of action in that both relate to the tenancy of the Battery Co.
4. It would be necessary, in order to prove the first cause of action, to prove the tenancy, so that the lease must be considered as involved in the first cause of action.
5. With causes so closely allied as these, there is no reason why plaintiff should be put to two trials.

Demurrer overruled.  