
    Sparks v. The Beacon Journal Building Co.
    (Decided March 21, 1933.)
    
      Messrs. Gottwald, Breiding, Hershey & Hinton, for plaintiff in error.
    
      Messrs. Musser, Kimber £ Huffman, for defendant in error.
   Stevens, J.

The parties to this action stand in the same relation in this court as in the court of common pleas, and will accordingly be referred to as plaintiff and defendant.

Plaintiff, C. Nelson Sparks, filed his second amended petition in the court of common pleas against the city of Akron and the Beacon Journal Building Company, wherein he alleged that the defendant the Beacon Journal Building Company was the owner of premises located at the corner of Summit and East Market streets, in the city of Akron; that said defendant, the Beacon Journal Building Company, at a time prior to the occurrences therein complained of, entered into an agreement with the defendant the city of Akron, whereby it constructed a sidewalk along said Summit street at its own expense, and whereby it agreed to keep said walk in a state of proper repair, all of which was to be done under the supervision and direction of the city of Akron, Ohio; that the said defendants knowingly permitted and' constructed, or caused the said sidewalk to be constructed, in a defective manner, in that said sidewalk was constructed in such fashion that one part thereof was higher and the other part thereof lower than the general grade and level of said walk; and that plaintiff, a pedestrian, in his lawful use of said sidewalk, by reason of the defective condition thereof, fell and sustained certain injuries, to his damage.

Defendant the Beacon Journal Building Company demurred to said second amended petition, predicating the demurrer on three grounds:

First, misjoinder of parties defendant.

Second, improper joinder of several causes of action.

Third, that said amended petition did not state facts sufficient to constitute a cause of action against the defendant the Beacon Journal Building Company.

The demurrer of said defendant was sustained by the court of common pleas, and, the plaintiff not desiring to plead further, final judgment was entered in favor of the defendant the Beacon Journal Building Company, and against plaintiff. To reverse that judgment, error is prosecuted to this court.

It will be noted that the Beacon Journal Building Company and the city of Akron were sued jointly, and the proximate cause of the injuries complained of was alleged to be a defect in the sidewalk, over which the defendant the Beacon Journal Building Company, by virtue of a contract with the city, had assumed control, and which it had promised to keep in a state of proper repair.

The duty of the city with reference to streets is defined by Section 3714, General Code, as follows: “Municipal corporations shall have special power to regulate the use of the streets, to be exercised in the manner provided by law. The council shall have the care, supervision and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts, within the corporation, and shall cause them to be kept open, in repair, and free from nuisance. ’ ’

In a very well-considered opinion by Judge Vickery, of the Eighth District Court of Appeals, in the case of Cleveland Ry. Co. v. Heller, 15 Ohio App., 346, the question whether or not a contract made for the benefit of a third person can be enforced by that third person, where a tort liability has arisen, and the judicial history of that question, are exhaustively considered and discussed; the court arriving at the conclusion that such suit may be maintained by the party injured against such contracting party.

1 Cooley on Torts (3d Ed.), page 247, lays down the following general rule: “Where two or more owe to another a common duty and by a common neglect of that duty such other person is injured, then there is a joint tort with joint and several liability. The weight of authority will, we think, support the more general proposition, that, where the negligences of two or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design or concert action.”

This is in accordance with the holding of this court in the case of Peteri v. Pennsylvania Rd. Co., 41 Ohio App., 105, 179 N. E., 817.

In the case of Matthews v. Delaware, Lackawanna & Western Rd. Co., 56 N. J. Law, 34, 27 A., 919, 22 L. R. A., 261, the court said: “If two or more persons owe to another the same duty, and by their common neglect of that duty he is injured, doubtless the tort is joint, and upon well-settled principles each, any or all of the tort-feasors may be held. But when each of two or more persons owes to another a separate duty which each wrongfully neglects to perform, then, although the duties were diverse and disconnected and the negligence of each was without concert, if such several neglects concurred and united together in causing injury, the tort is equally joint and the tort-feasors are subject to a like liability.”

In the case of Bateman v. Forty-Second St. M. &. St. N. Ave. Ry. Co. (common pleas), 5 N. Y. S., 13, 14, a situation almost identical with the instant case is presented. There the railway company and the city of New York were jointly sued by the plaintiff, Bate-man, for injuries sustained by her because of a defect in the street. The railway company, by contract with the city, had agreed to keep portion's of certain streets in repair, and by reason of the failure of said railway company to so keep said streets in repair, it was alleged that plaintiff had sustained injury. A demurrer was interposed by the railway company on two grounds: First, misjoinder of causes of action; and, second, misjoinder of parties defendant. In overruling said demurrer, the court held as follows: “I think the demurrer is not well taken. It is true that the basis of defendant’s liability to the plaintiff rests upon a contract made between the defendant the railway company and the mayor, etc., to keep portions of certain streets in repair, and but for this contract in the absence of any affirmative act on the part of the defendant the railway company, the city alone would be liable in tort for injuries caused by reason of the pavement in such streets being negligently out of repair; yet, the contract having been made between the city and the railway company, by which the latter agreed to keep portions of the streets in repair, it is jointly liable with the city to third parties when it negligently allows the portion of the street by it contracted to be kept in repair to be out of order. Both the city and the railway company then become liable to third persons for any injury which may result from the street not being kept in proper condition. The ground of liability is the same, to-wit, negligence on the part of both. As between the city and the defendant railway company, the liability rests upon contract; bnt I think, as between the defendants and third persons, they are jointly as well as severally liable for negligence, under the principle of the decision in McMahon v. Railroad Co., 75 N. Y., 231.”

In McMahon v. Second Ave. Rd. Co., 75 N. Y., 231, the court at page 239 said: “There was no error in admitting in evidence the agreement between the defendant and the municipality. That was material and proper, to show that there was undertaken by the defendant the duty which lay primarily upon the city to give the public, and the plaintiff, as one thereof, a safe passage through the thoroughfares. The reception of the agreement in evidence did not change the cause of action from one arising in tort to one based upon contract. It showed the duty of the defendant, and made applicable the other facts of the case, to show its negligence of duty, wherein it was tortious.”

The Supreme Court of Ohio, in the case of the Village of Mineral City v. Gilbow, 81 Ohio St., 263, at page 273 [90 N. E., 800, 25 L. R. A. (N. S.), 627], quoted with approval the rule laid down in the case of City of Peoria v. Simpson, 110 Ill., 294, 51 Am. Rep., 683, as follows: “But a different principle applies where the injury is the result of a neglect to perform a common duty resting on two or more persons, although there may be no concert of action between them. In such cases the party injured may have his election to sue all the parties owing the common duty, or each separately, treating the liability as joint or separate.”

See, also, note in 49 L. R. A. (N. S.), 1168, paragraph b, and cases cited thereunder.

It should be pointed out that the negligence charged against the property owner in the instant case does not arise out of an act of commission, but from an act of omission, which fact distinguishes this case from that of Morris v. Woodburn, 57 Ohio St., 330, 48 N. E., 1097, and other like cases. In the instant case the torts charged are not merely concurrent and related; they are joint.

In view of the foregoing authorities, we hold:

First. Where one contracts with a municipality to perform in its stead the statutory duty resting upon it of keeping a portion of its streets in repair and safe for the passage of the public, and where, because of neglect to perform that duty, a cause of action arises in favor of a member of the public, then such injured party may, at his option, maintain his action against the municipality, the contractor, or both; their liability being joint and several.

Second. Such an action is one in tort and not in contract.

For error in sustaining the demurrer and rendering judgment in favor of the Beacon Journal Building Company, said judgment is reversed, and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Washburn, P. J., and Funk, J., concur.  