
    National Retailers Mutual Ins. Co., Appellee, v. Gross, Appellee; Rothen, Appellant.
    (No. 29402 —
    Decided July 28, 1943.)
    
      
      Messrs. Baker & Infield, for appellee.
    
      Mr. H. A. Walts and Mr. James Olds, for appellee, Clarence D. Gross.
    
      Messrs. Wise, Roetsel & Maxon and Mr. Wm. A. Kelly, for appellant.
   Weygandt, C. J.

The first question for determination is whether, in an action by the assignee of part of a tort claim against a tort-feasor, such tort-feasor may have the assignor of the claim made a party to the action.

The entire injury suffered by an individual as the result of a tortious act constitutes an indivisible chose in action. According to the petition Rothen retained an interest in the chose in action to the extent of $50, and the remainder was assigned to the plaintiff company. They became joint owners of the indivisible chose in action. Their unity of interest was such as to make it proper — even necessary, according to many authorities — for both to be included as parties, thereby avoiding a splitting of the cause of action and the harassing of the defendant tort-feasor by more than one suit.

The second question is more difficult. When such an action is instituted by the assignee within the statutory period, may the defendant make the assignor a new party and file a counterclaim in a cross-petition against him after the period has elapsed? The plaintiff concededly was not barred when it commenced the suit, but Gross was well without the pale at the time he made Rothen a new party and filed a cross-petition against him.

The general rule seems to be that under such circumstances the filing of the cross-petition relates back to the time the action was commenced. This view is summarized as follows in 34 American Jurisprudence, 60, Section 65:

“However, although there is authority to the effect that the statute of limitations does not cease to run against offsets of the defendant until the time he files his plea of offsets in the case, the prevailing view seems to be that, unless otherwise provided by statute, if a counterclaim or setoff is not barred at the commencement of the action in which it is pleaded, it does not become so afterward, during the pendency of that action. ’ ’

Likewise, in the second paragraph of the syllabus in the case of McEwing v. James, 36 Ohio St., 152, this court made the following- pronouncement to the same effect:

“The statute of limitations ceases to run against a setoff from the date of the commencement of the action in which it is pleaded.”

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Matthias, Zimmerman, Bell and Turner, JJ., concur.

Hart, J., concurs in the syllabus but dissents from the judgment.

Williams, J., not participating.

Hart, J.,

dissenting. The purpose of statutes of limitation is to bar actions and not to suppress or cut off matters of defense. Therefore, it is a general rule that such statutes are not applicable to defenses which serve to lessen or liquidate an adversary claim. 34 American Jurisprudence, 57, Section 63; 25 Ohio Jurisprudence, 573, Section 230. A statute of limitation ceases to run against a setoff or counterclaim as a defense only from the date of the commencement of the action in which such setoff or counterclaim is set up. See annotations 16 A. L. R., 326, and 78 A. L. R., 1074.

But this rule applies only in the case of defenses and does not apply where affirmative relief is sought. 34 American Jurisprudence, 57 and 59, Sections 63 and 64; Muckenthaler v. Noller, 104 Kan., 551, 180 P., 453; Louisville Banking Co. v. Buchanan, 117 Ky., 975, 80 S. W., 193. And where a defense is asserted by way of setoff or counterclaim, the plaintiff may invoke a statute of limitation as to any affirmative relief sought in connection therewith. Bryant v. Swetland, 48 Ohio St., 194, 27 N. E., 100.

In the instant case, in my opinion, there can be no valid counterclaim or setoff asserted by defendant Gross which will lessen or liquidate the claim of the plaintiff. Aside from the statute of limitation, if either the plaintiff or defendant Gross is entitled to recover, the other is not because such recovery establishes as an uncontravertible fact the wrong of such other. Gibson v. Solomon, 136 Ohio St., 101, 23 N. E. (2d), 996, 125 A. L. R., 903; Conold v. Stern, 138 Ohio St., 352, 363, 35 N. E. (2d), 133, 137 A. L. R., 1003; Krisher v. McAllister, 71 Ohio App., 58, 47 N. E. (2d), 817.

Both plaintiff and defendant Gross, respectively, are asserting claims, not by way of defense but by way of affirmative independent actions against the other. The claim or cause of action of each, if there be such, accrued at the same instant. Each such affirmative claim or cause of action was barred when the statute had run against it from the time of its accrual. Since the defendant did not attempt to assert his claim until after the period of limitation had run against it, it is barred.  