
    The Baltimore & Ohio Rd. Co. v. Baillie et al.
    
      Venue — Negligence—Action in Ohio by non-resident for injuries received outside state — Railroad and non-resident corporation properly joined as defendants, when — Section 11278, General Code — Supreme Court — Syllabus states law upon facts involved.
    
    1. The provisions of Section 11273, General Code, do not preclude the maintenance of an action in a county of this state against a railroad company by a resident of another state for injuries to person or property, though occurring elsewhere than in this state, where the injury complained of resulted from the joint negligence of such railroad company and another corporation which are joined as defendants in an action which is properly brought against the latter defendant in such county.
    2. The syllabus of a decision of the Supreme Court of Ohio definitely states the law of Ohio with reference to the facts upon which it is predicated, and must be read in view of the facts found in such case.
    (No. 18831
    Decided May 19, 1925.)
    Error to the Court of Appeals of Cuyahoga county.
    This action was instituted in the court of common pleas of Cuyahoga county by Tom F. Baillie', who resided in the state of Pennsylvania, against the Baltimore & Ohio Railroad Company, his employer at the time he was injured, June 19, 1922, and the American Steel & Wire Company.
    The petition set out averments to the effect that plaintiff’s injury, sustained in the discharge of his duty as an employe of the railroad company while working at Nankin, Pa., was caused by the combined negligence of the two companies named. The averments of the petition here pertinent are as follows:
    
      
       Venue, 40 Cyc. p. 36;  Courts, 15 C. J. § 380.
    
      “Plaintiff further avers that at the time complained of defendant, the Baltimore & Ohio Nail-road Company, was moving said train on the premises of defendant, the American Steel & Wire Company, at the instance of and in pursuance of a contract with the said American Steel & Wire Company; that the oars aforesaid contained billets of iron and steel which were en route between the city of Cleveland in the state of Ohio and the sheds at the Nankin Works of defendant, the American Steel & Wire Company, in the state of Pennsylvama, by reason whereof at said time plaintiff was employed, and the defendant the Baltimore & Ohio Nailroad Company was engaged, in interstate commerce and traffic by rail.
    “Plaintiff further says that at the time complained of defendant, the Baltimore & Ohio Nail-road 'Company, carelessly and negligently ordered, directed, and required him to work on said train as the same was moved along said switchtraok on the premises aforesaid; and carelessly and negligently failed and neglected to provide and maintain a reasonable, adequate, and safe clearance between cars moved by it over said track and objects alongside thereof; and carelessly and negligently failed and neglected to cause said pillars to be moved or the track so located with reference thereto as to provide a reasonably safe clearance; and carelessly and negligently failed and neglected seasonably to warn or apprise plaintiff of the danger incident to the operations aforesaid, in view of the inadequate clearance herein described; and carelessly and negligently failed and neglected to provide plaintiff with a reasonably safe place in which to carry forward said work.
    “Plaintiff further says that at the time herein complained of the defendant, American Steel & Wire Company, carelessly and negligently constructed and maintained said pillars in dangerous and unsafe proximity to said switch-track; and carelessly and negligently failed and neglected to keep and maintain its premises aforesaid in a reasonably safe condition for use by defendant, The Baltimore & Ohio Railroad company, and its employes who were required to work along said track.”
    Service was duly made upon both of said defendants in Cuyahoga county. Thereafter the defendant, Baltimore & Ohio Railroad Company, appearing for the purpose of such motion only, moved for an order quashing service of summons upon it, for the reason that neither was the plaintiff a resident of Cuyahoga county, nor did such cause of action arise therein, which motion was sustained by the common pleas court. Upon proceeding in error, the Court of Appeals reversed the judgment of the common pleas, and upon motion the cause was ordered certified to this, court.
    
      Messrs. Tolles, Hogsett, Ginn & Morley, for plaintiff in error.
    
      Messrs. Payer, Winch, Minshall & Karch, for defendant in error Baillie.
    
      
      Messrs. Squire, Sanders & Dempsey, for defendant in error American Steel & Wire Co.
   Matthias, J.

The question is here clearly presented whether the provisions of Section 11273, General Code, preclude the bringing of an action in a county of this state against the persons and companies enumerated in that section by a resident of another state for injuries to person or property occurring elsewhere than in this state, where the injury complained of resulted from the joint negligence of a railroad company and another corporation against which the action is maintainable in such county of this state.

If this suit were against the Baltimore & Ohio Railroad Company alone there would be no question here, for that was decided in the case of Loftus v. Pennsylvania Rd. Co., 107 Ohio St., 352, 140 N. E., 94, where Section 11273, General Code, was interpreted and its constitutionality maintained. It is now claimed that the language there employed, not only in the opinion, but in the syllabus, is so broad and comprehensive that the decision of this court in that case is also determinative of the question presented by the motion to quash in this case. Because the state of facts here presented is so different from that before the court in the Loftus case, the syllabus of that case cannot be regarded as determinative of the issue presented in the instant case. The syllabus of a case definitely states the law with reference to the facts upon which it is predicated, and must be read in view of the facts found in such case. Admittedly such action may be properly brought and maintained in Cuyahoga county against the American Steel & Wire Company, which is a New Jersey corporation doing business in Cleveland, where it has a managing agent. Hence the question presented is whether the railroad company must be dismissed from this action.

As stated by Shauck, J., in Maumee Valley Railways & Light Co. v. Montgomery, 81 Ohio St., 426, 431, 91 N. E., 181, 182 (26 L. R. A., [N. S.,] 987, 135 Am. St. Rep., 802), where recovery was sought from two transportation companies, upon the ground that their negligence combined caused the injury:

“If the collision resulted solely from the negligence of the Interurban Company the liability should ultimately fall upon it. But that liability may be enforced in the same action as the liability of the Maumee Company for the breach of its contract. The original plaintiff was. obliged neither to waive his right of action against either company nor to choose at his peril against which company he would bring his action. We are aware of no rule of law which requires several actions to determine the rights and liabilities of the parties in such a case. That they may be determined in one action appears from Morris v. Woodburn, 57 Ohio St., 330; Chicago v. Robbins, 2 Black, 418; City of Rochester v. Campbell, 123 N. Y., 405.”

The American ¡Steel & Wire Company being properly sued in 'Cuyahoga county, the Baltimore & Ohio Railroad Company, under the averments of the petition, may be joined as a defendant by virtue of the provisions of Section 11255, General Code, unless by reason of the provisions of Section 11273, General Code, the former section can have no application to suits against such persons and companies as are enumerated in the latter section. Is it possible that the provisions of our statutes are now such that, where two parties jointly cause an injury, and an action may be maintained in this state against one, the other cannot be joined if it happens to be a person or company such as enumerated in Section 11273, General Code, but suit against such party must be separately maintained elsewhere or abandoned altogether? That would be the result if the contention of plaintiff in error be sustained, which it seems clear would not only be violative of the purposes of our Civil Code of Procedure to prevent a multiplicity of suits, but would nullify clear and express provisions of other statutes, particularly Section 11255, General Code, which provides:

“Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who- is a necessary party to a complete determination or settlement of a question involved therein.”

This statute is not irreconcilably inconsistent with Section 11273, General Code, and the rule against repeals by implication requires that the provisions of Section 11255 be here applied.

The proviso portion of 'Section 11273, General Code, is the new part of that section, and constitutes the amendment made in 109 Ohio Laws, 81. Clearly it does not refer to any provision of any statute except that which immediately precedes it in the same section, and except as it modifies the provisions of Section 11276, General Code, as stated in the Loftus case. The purpose of such amendment was quite evidently none other than to prevent the bringing- of the class of actions specified against transportation companies at some point in this state distant from the place of injury and residence of the plaintiff. It clearly was not enacted in the interest of the plaintiff, for it prevented the selection of the forum by him, as permitted by the law prior to such amendment. It is a limitation upon the enforcement of a right of action, and therefore must be strictly construed, and all of the statutory provisions respecting venue are in pari materia, and must be read and construed together.

It is our conclusion that the provisions of Section 11273, General Code, do not preclude the maintenance of an action in a county of this state against a railroad company by a resident of another state for injuries to person or property, though occurring elsewhere than in this state, where the injury complained of resulted from the joint negligence of said railroad company and another corporation, which are joined as defendants, in an action which is properly brought against the latter defendant in such county.

The fear expressed by counsel that the view the majority of the court has taken in this case would tend to promote an evasion of the provisions of Section 11273, General Code, by joining employer and employe as codefendants, may be somewhat allayed by a consideration of the decision of this court in the case of French, Adm’r., v. Central Construction Co., 76 Ohio St., 509, 81 N. E., 751, 12 L. R. A., (N. S.), 669, where it was held in the syllabus:

“An action cannot be maintained jointly against master and servant for the wrongful and negligent act of the latter if in the particular case the master’s liability for such wrongful and negligent-act arises solely from the relationship between them under the doctrine of respondeat superior. Clark v. Fry, 8 Ohio St., 358, approved and followed. ’ ’

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Marshall, C. J., Allen and Robinson, JJ., concur.

Jones, Day, and Kinkade, JJ., dissent.

Marshall, C. J.,

concurring. I concur in the syllabus in this case and the reasoning’ of the majority opinion. I desire to briefly address myself to the dissenting opinion. The dissenting opinion is based entirely upon an interpretation of Section 11273, without regard to any other existing sections of the General Code. If that section stood alone, and did not interfere with the administration of any other section of the General 'Code, the dissenting opinion would undoubtedly be correct. When the recent amendment of that section was enacted in 109 Ohio Laws, at page 81, no amendment or modification was made of Section 11255, General Code, providing- for actions against joint defendants. If it should be found that there is such inconsistency between Section 11273, as amended, and Section 11255, that both could not stand and be administered at the same time, the court might well declare an implication of repeal of Section 11255. It is admitted in the dissenting opinion that there can be no just claim of either express or implied repeal of Section 11255. It is admitted that that section still has an important function. This being true, rights under that section are just as important to litigants within the sphere of that section as are rights to litigants under Section 11273 within its sphere. In the case of Loftus v. Pennsylvania Rd. Co., 107 Ohio St., 352, 140 N. E., 94, this court dealt solely with an interpretation of Section 11273, unaffected by the provisions of Section 11255. The principles therein declared must be accepted with reference to the facts of the case then decided. We are now confronted with the rights of an injured party who pleads a joint liability against a manufacturing corporation and a transportation company, a situation not presented in the Loftus case. A careful analysis of the dissenting opinion discloses that the fears therein expressed can never be realized. The discussion of the ease of French, Adm’r., v. Central Construction \Co. shows that that case is a cogent authority for preventing any claimant from bringing a transportation company into the courts of Ohio by the mere expedient of joining as a co-defendant an alleged joint wrongdoer where no joint liability in fact exists. If a joint liability is not only alleged, but also proven, Section 1125'5 •should apply, and a failure to apply it would be a denial of a substantial right clearly granted by statute to an injured party. The right to sue joint tortfeasors in a single action is a substantial right granted by statute, which should not be destroyed by implication or mere interpretation. The statute is based upon substantial considerations which must be apparent to the most superficial student of the subject. An injured party should not be put to the trouble and expense of two actions where a joint wrong has been committed. If one of the joint wrongdoers could not be joined, the injured party would lose the right to cross-examine the party who was not joined in each separate trial. Other reasons might easily be suggested. If any party plaintiff should bring an- action against one alleged wrongdoer, and join a transportation company as codefendant, and it should appear by the evidence introduced that the negligence was concurrent and related, but not joint, it would be the duty of the court, under the authority of French v. Central Construction Co., to dismiss the transportation company upon motion, when that fact is made clearly to appear. That portion of the opinion in the Frercch case quoted in the dissenting opinion clearly states this principle. Strange to say, all members of this court are in full accord upon the proposition that Section 11255 is in full force and effect, also that the case of French, Adm’r., v. Central Construction Co., 76 Ohio St., 509, 81 N. E., 751, 12 L. R. A., (N. S.), 669, is sound from every standpoint, and all members of the court agree that the Loftus case is sound. It being admitted that Section 11255 has not been either expressly or impliedly repealed, and that the case of French v. Construction Co. is sound, it is difficult to see how this court could have reached any conclusion except that of unanimous concurrence in the syllabus and unanimous approval of the majority opinion.

Jones, J.,

dissenting. Baillie, the plaintiff, was a nonresident of the state of Ohio. The accident occurred in the state of Pennsylvania. The American Steel & Wire Company was a New Jersey corporation. It is conceded that the Baltimore & Ohio Railroad Company could not be sued separately in the county of Cuyahoga. The claim is made that, while this is true, it may be sued in a joint action. This leads us to the consideration of Section 11273, General Code (109 O. L., 81), the text of which may be found in the reported case of Loftus v. Pennsylvania Rd. Co., 107 Ohio St., 352, 140 N. E., 94.

Section 11273, General Code, is a venue act applying purely to transportation companies. After providing that actions may be brought against this class of companies in any county through or into which the railroad passes or extends, it contains the following proviso: “Provided that all actions against” a railroad company for injuries to person or property or for wrongful death “must” be brought either in the county where the cause of action arose or where the claimant resided at the time. This proviso specifically excludes any right of action against a railroad company for injuries or death unless the suit is brought where the accident occurred or the plaintiff resided. This court now decides that the phrase “all actions” does not mean what it says; that, notwithstanding the legislative use of the phrase, some actions may still be brought as if the proviso were not specifically passed to exclude that right. The phrase “all actions” includes, not only an action brought against a transportation company separately, but an action brought against it jointly. No claim is made that Section 11273, General Code, repeals 'Section 11255, General Code, either expressly or by implication. The latter section still applies to that multitudinous class of cases between private individuals, corporations, or even transportation companies, where injuries to person or property, or death, have not resulted. For this reason there was no need for the repeal of the latter section. But there is no escape from the conclusion that it is purely judicial legislation for a court to hold that some actions may be brought elsewhere when the Legislature has specifically stated that in this class of cases all actions must be brought where the accident occurred or the claimant resided.

This is in conformity to our unanimous decision in the case of Loftus v. Pennsylvania Rd. Co., supra. We there held that Section 11273, General Code, excluded from the jurisdiction of the state courts “all causes against the persons and companies therein referred to for injuries to person or property or for wrongful death occurring without the state of Ohio unless such claimant is a resident of this state.” This was settled in the first proposition of the syllabus, which determined that all causes were excluded from the state courts’ jurisdiction. In that case the rationale of the decision supports the syllabus. The opinion at page 355 (140 N. E., 95), states:

“The proviso in Section 11273 includes ‘all actions’ against the classes of corporations referred to in the earlier part of that section. * * * If this court should place a construction upon the language used which would not make it exclusive, then the word ‘all’ would be rendered entirely devoid of meaning. The plain unambiguous meaning to be given to the language employed makes it clear that the Legislature intended to deprive all persons from resorting to the courts of Ohio in eases against the companies named, whether foreign or domestic, unless the injuries to person or property, or the wrongful death, were caused in the state, or the claimant resides in the state.”

The common pleas court was right in sustaining the motion of the railroad company to qiiash service upon it.

2. It must be conceded that the Loftus case, supra, has decided that the railroad company cannot be separately sued in Cuyahoga county. The effect of the majority decision is to hold it suable in that county only if there be a joint liability stated and proved. Obviously there are valid reasons why the majority’s opinion should not be sustained. The common-law rule required that a joint judgment should follow a joint liability. Our statute has so modified this that a separate judgment could be rendered, where service has properly been made, if the proof disclose that the liability was several and not joint. However, in this case no such principle could possibly apply, for, if there be no joint liability, or if the American Steel & Wire Company should be dismissed by the court, there could be no separate action against the railroad company, since the jurisdiction of the court under Section 11273, General Code, is then excluded under the decision of the Loftus case, supra. If it be conceded that the petition states a joint cause of action because it alleges that “the defendants maintained and used a certain railroad switch track,” the proof on the trial may disclose facts indubitably indicating that the cause of action, in fact, was not joint, or that there was no joint liability; that the tortious acts of the separate defendants were independent, concurrent, and related, but not joint. Morris v. Woodburn, 57 Ohio St., 330, 335; Village of Mineral City v. Gilbow, 81 Ohio St., 263, 272, 90 N. E., 800, 25 L. R. A., (N. S.), 627; Bello v. City of Cleveland, 106 Ohio St., 94, 104, 138 N. E., 526, 529, where the opinion states:

“The authorities already referred to establish the proposition that there can be no joint action unless there is joint liability and joint liability can only exist where there is concert of action in pursuit of a common intent. Where separate tortious acts have been separately done, and only a single injury inflicted, the parties must be sued separately.”

Should the plaintiff in error continue to question the jurisdiction over his person under Section 11273, General Code, but compelled nevertheless to answer to the merits of the action, the testimony may develop that there was no joint cause of action, or any liability, joint or several, proven against the American, Steel & Wire Company. In that respect it may follow the procedure designated in French, Admr., v. Central Construction Co., 76 Ohio St., 509, 81 N. E., 751, 12 L. R. A. (N. S.), 669. Should the American Steel & Wire Company be dismissed from'the action, or should the verdict of the jury fail to find joint liability on the part of the two defendants, bnt a several liability only, it would be the duty of the court to dismiss the case against the railroad company under our decision in the Loftus case, supra. In the 'French case, supra, a joint action against master and servant, counsel for the injured party insisted that a misjoinder should have been raised by demurrer or answer, and that failure to do so was waived by the master. The court denied this contention, saying, in the course of the opinion, page 518 (81 N. E., 752):

“The answer to this is that the fact of misjoinder does not affirmatively appear on the face, or from the allegations, of plaintiff’s petition, but such fact was, for the first time, disclosed by the evidence which was introduced on behalf of the plaintiff.”

The court held that the plaintiff having failed by his evidence to establish a joint liability, and that the evidence, if any, having disclosed a several and not a joint cause of action, the motion to elect which of the defendants he would further proceed against was properly sustained. Manifestly, if such a motion were made in a case of this character, the plaintiff could not elect to proceed against the railroad company, since the cause of action pleaded against the American ¡Steel & Wire Company, not being sustained, would be merely a subterfuge, having the sole purpose of bringing within the court’s jurisdiction, in Cuyahoga county a transportation company that he could not sue directly in a separate action. This unique situation, which would not ordinarily arise in other actions founded upon a joint liability, necessarily requires that Section 11273, General Code, should he so construed as to include “all causes against the persons and companies therein referred to for injuries to person or property,” a principle distinctly decided in the Loftus case, supra.

Day and Kinkade, JJ., concur in the dissenting opinion.  