
    French, Admr., v. The Central Construction Company et al.
    
      Joint action against master and servant — For wrongful act of latter —Can not be maintained, when — Plaintiff must elect — Section 5314, Subdivision 5, Revised Statutes — Law of negligence — • Court procedure.
    
    ,1. An action can not be maintained jointly against master and servant for tlje 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.
    2. Where, in an action for negligence, master and servant are improperly joined as defendants, the plaintiff in such action may be required to elect against which of said defendants he will proceed. And where in a proper case, on motion of one of the defendants, an order of election is made by the court, and plaintiff refuses to comply with or obey such order, the court may, under authority of Subdivision 5 of Section 5314, Revised Statutes, dismiss the action without prejudice to a future action.
    (No. 10287
    Decided June 25, 1907)
    Error to the Circuit Court of Lucas County.
    
      ■ Plaintiff in error, as the personal» representative of Raymond March, deceased, brought suit in the court of common pleas of Lucas county, Ohio, against the defendants in error, The Central Construction Company and Edward S. Hatch, a superintendent or foreman in the employ of said company, asking to recover against them jointly damages in the sum of ten thousand dollars, for wrongfully causing the death of said Raymond March, who was also an employe of The Central Construction Company, and at the time of his death was engaged in its service, under the immediate direction and control of the said Edward' S. Hatch, superintendent or foreman of said company. The death of March was occasioned by and resulted from the negligent acts and conduct of Platch, the superintendent or foreman. The issues being duly made up the cause came on for trial to a jury. At the conclusion of the plaintiff's evidence, and after the plaintiff had rested his case, the defendant, Edward S. Hatch, moved the court' to require the plaintiff to make his election whether he would prosecute his action against him, the said Edward S. Platch, or against the defendant, The Central Construction Company. The court upon consideration sustained this motion and caused to be spread upon its journal the following entry: “This day this case came on for trial, and a jury having been empaneled and sworn, and the plaintiff having introduced all his evidence and having rested his case, the defendant, Edward S. Platch, moved the court to require the plaintiff to elect as to whether he would prosecute this action against the said defendant, Hatch, or against the defendant, The Central Construction Company.
    “Upon consideration of the said motion, the same was granted by the court, and the plaintiff was ordered and directed to prosecute this action against either the defendant, Hatch, or the defendant, The Central Construction Company, and was denied the right to prosecute the same jointly against the defendants hereto, to which action of the court the plaintiff then and there duly excepted, and with. which order of the court the plaintiff then and there refused to comply, and requested that the case be submitted to the jury, which request was denied, to which plaintiff excepted.
    “Thereupon, by reason of the failure of the plaintiff to comply with the said order, the court withdrew a juror and dismissed this action. To all of which this plaintiff duly excepted.
    “This action is dismissed solely upon the refusal of the plaintiff to comply with the order of the court requiring him to elect which of said defendants he shall prosecute herein, and not upon the merits of plaintiff’s cause of action.” This judgment of dismissal was affirmed by the circuit court and error is now prosecuted to this court asking a reversal of both the judgments below.
    
      Mr. Charles A. Thatcher, for plaintiff in error.
    It appears from the petition that it was the joint acts of negligence on the part of the employer and the foreman which produced the death of March. This being true, the rule is well settled that persons guilty of a tort which results in injury to another, may be sued separately or jointly as the plaintiff may elect. In other words, wrongdoers have no election as to the manner in which they can be prosecuted for their wrongful acts. This distinguishes torts from actions based on contracts. We assume that no one will deny that the conduct of both defendants which resulted in the death of March, was a tort. Railroad Co. v. Laid, 164 U. S., 393; The B. B. Saunders, 19 Fed Rep., 118.
    ■ The question as to whether a master and servant can be joined as parties- defendant in an action' to recover for personal injury, has been repeatedly before the courts. It is practically universally held, both in federal and state courts, that wrongdoers can not elect as to the manner in which they will be sued, but that if they are each responsible for causing injury to another, they may be united •or. may be sued separately at the election of the plaintiff. This question has frequently arisen in the federal courts, especially where the question of removal from the state to the federal court is involved. Railroad Co. v. Dixon, 179 U. S., 131; Bridge Co. v. Hunt, 130 Fed. Rep., 302; Mechem on Agency, Sec. 571; Berghoff v. McDonald, 87 Ind., 549; Cooley on Torts, 164; I Am. & Eng. ,Ency. Law, 2d Ed., 815; Phelps v. Waite et al.; 30 N. Y., 78; Wright v. Wilcox, 19 Wend., 343; Moore v. Iron & Steel Co, 89 Fed. Rep., 73; Pirie et al. v. Tvedt et al., 115 U. S., 41; Torrence v. Shedd, 144 U. S., 527; Brown v. Coxe Bros. & Co., 75 Fed. Rep., 689; Charman v. Railroad Co. et al., 105 Fed. Rep., 449; Doremus v. Root, 94 Fed Rep., 761; Laughlin v. Railway Co. et al., 80 Fed. Rep., 702; Downey v. Railroad Co., 161 Pa. St., 588; 29 Atl, Rep., 126; The “Atlas,” 93 U. S., 302; Railway Co. et al. v. Byrne, 100 Fed. Rep., 539.
    Plaintiff. may join several defendants and if he fail as to one he may recover as to another. Pennsylvania Co. v. Snyder, 55 Ohio St., 342; Joinder of Causes of Action, 5019; Sturges et al. v. Burton et al., 8 Ohio St., 215; Albro v. Jacquith, 4 Gray, 99; Osborne v. Morgan et al., 130 Mass., 102; Bell v. Josselyn, 3 Gray, 309; Horner v. Lawrence, 8 Vroom, 46; Plinds v. Harbou, 58 Ind., 12; Hare v. McIntire, 82 Me., 240.
    The law'applicable to the nonfeasance and misfeasance of a servant, in connection with injuries thereby occasioned to others, is fully discussed in the case of Steinhouser v. Spraul, 127 Mo., 541; Railway Co. v. Grizzle, 53 S. E. Rep., 244.
    One of the earliest cases in Ohio is that of Henshaw v. Noble et al., 7 Ohio St., 226.
    We believe that the ruling of the supreme court in that a servant and master may be joined for the tort of the former is still the law in Ohio and has never been departed from in any particular. We say this with Tull knowledge that it has been attempted to claim that the supreme court laid down a different rule in the case of Clark v. Fry, 8 Ohio St., 358.
    We contend, however, that the Henshaw case has never been overruled or qualified in any sense, and that the decision in the case of Clark v. Fry is a mere dictum, and is not the law of Ohio.
    One of the main objects of the adoption of the code was to do away with a multiplicity of suits, and abolish all fiction existing under the common law.
    Mr. Thompson, in his very excellent Commentaries on the Law of Negligence, Section 7437, enters into a full discussion of this subject and while recognizing that, under the common law there were cases where the master and servant could not be joined in án action of this character, says:
    “Under the codes of several of the states, which, as is well known, abolish forms of action, the master and the servant may be joined in one action.”
    In support of this he cites many cases. See also Thompson’s Commentaries, Secs. 536 and 611.
    Under Section 6134, Revised Statutes, it is clear that the legislature did not intend to say that the persons who are guilty of causing the death of another should be sued separately, but rather that they were jointly liable.
    The doctrine as first announced by the Supreme Court of Massachusetts in the Parsons case has been abandoned by it, as appears from its opinion in the case of Hewett v. Swift, 85 Mass., 420.
    The court further specifically holds that in an action of this character the liability of both the master and servant arises from the fact that a trespass or tort has been committed by the servant, for which the master, as well as the servant, is liable. The Supreme Court of Massachusetts points out that where the servant is in the performance of duties imposed upon him by the master, the master is presumed to be present, and, in the eyes of the law, is present and participates in the conduct of the servant. Moore v. Railroad Co., 4 Gray, 465.
    . The doctrine that a joint action will not lie because the right of contribution did not exist, has also been abandoned by the Supreme Court of Massachusetts, as appears from its opinion in Gray v. Gas Light Co., 114 Mass., 149; Churchill et al. v. Holt et al., 127 Mass., 165; Holmes v. Wakefield et al., 94 Mass., 580; Cooley on Torts, 167.
    
      Messrs. Smith & Baker, for defendants in error.
    The cause of action against Hatch is, of course, a personal one and is joined with a claim against the construction company, not for its personal act, but for the act of its agent, it being liable only because of the negligence of the agent , and not because of any actual negligence on its part.
    The two causes of action are separate and distinct, and the master and servant in • such a case cannot be joined. The law, as we understand it, is well settled in almost all jurisdictions that for a negligent act of a servant, in the scope of his employment, he is not personally liable except to the master. This is borne out by the decision in Hoffman v. Gordon & Bro., 15 Ohio St., 211.
    
      Henshaw v. Noble et al., 7 Ohio St., 231, clearly shows that Hatch, under the allegations of this petition, is not liable to plaintiff at all, even in a separate suit; and this being so, of course he cannot properly be joined with his principal; that it is the law that they may not be joined is fully determined by the Supreme Court of Ohio in Clark v. Fry, 8 Ohio St., 358.
   Crew, J.

The motion to require plaintiff to elect whether he would prosecute his action against the defendant, Edward S. Hatch, or against the defendant, The Central Construction Company, was properly sustained by the court of common pleas. To maintain an action jointly against two or more defendants, whether such action rests upon contract or in tort, the plaintiff must allege and show a joint liability. If the action be in form ex delicto, to recover damages for the wrongful or negligent act of a servant or employe, to warrant the joinder of the master as a defendant in such action, the negligent act charged must be, either in fact or in legal intendment, the joint or concurrent act of the master and servant. In the present case no such act of negligence was shown or proved. The actionable negligence in this case, if any was shown, consisted of an act done by Hatch, a foreman of the Central Construction Company, while engaged in the prosecution and discharge of the company’s business and in the actual conduct and course of such business. At the time March received the injuries which resulted in his death, The Central Construction Company was engaged in constructing a bridge over the Maumee river at Grand Rapids, Ohio. Hatch, a foreman of said company, was superintending the work. The deceased, Raymond March, was an employe of said construction company, and was one of the workmen engaged on this work under the direction and control of Hatch, who rwas his foreman and superior. During the progress of the work, by reason of the alleged negligent act or acts, of Hatch, a rope which March was using to support himself while at work on said bridge, slipped or gave way, and March was thrown upon the rocks below, a distance of about fifty-five feet, receiving injuries from the fall which resulted in his death four days later. The negligent or wrongful act complained of was the act of Hatch, and the construction company not having directed Hatch to perform this particular service, or to do the particular thing which it is claimed resulted in the injury to March, can not be said to have acted in concert with him in producing. such injury. Upon these facts, and under such circumstances, the construction company, if liable at all, is liable, not as a joint tort feasor, but under the doctrine of respondeat superior, and because the law makes it responsible for the acts of its servant done in the discharge or performance of its business. 'While the general rule perhaps is,' that master and servant are each severally liable for the wrongful and tortious act of the later committed in the course of the master’s business, it does not therefore follow that they are, or may be held, jointly responsible for the consequences of such act, or that a joint action can be maintained against them therefor by a person thereby injured. That the master can not be so joined as a defendant in an action against his servant, where the negligent act of the servant was neither committed in the presence of the master nor by his express direction, is held in the following cases: Parsons v. Winchell et al., 5 Cushing, 592; Seelen et al. v. Ryan & Co. et al., 2 C. S. R., 158; Warax v. Cincinnati, N. O. & T. P. Ry. Co. et al., 72 Fed. Rep., 637; Mulchey v. The Methodist Religious Society et al., 125 Mass., 487; Campbell v. Portland Sugar Co., 62 Maine, 552; Page v. Parker, 40 N. H., 47, and Bailey et al., Exrs., v. Bussing, 37 Conn., 349. But we need not iook for authority upon this proposition beyond the decisions of our own supreme court. It is, and since the decision by this court of Clark v. Fry, 8 Ohio St., 358, has been, the settled rule and law in this state that a joint action can not.be maintained against master and servant, in any case where the master’s liability for the wrongful and negligent act of the servant arises solely and only from the legal relationship existing between them under the rule of respondeat superior, and not by reason, or because of, the master’s personal participation in such wrongful or negligent act. It is, however, suggested in argument by counsel for plaintiff in error that the misjoinder of parties defendant, if the fact of such misjoinder was to be relied upon in this case, should have been taken advantage of by demurrer in the court of common pleas, and it is claimed that the question not having been there raised by answer or demurrer, that defendants must be held to have waived their right to object on that ground, as well as any right they may have had to require plaintiff to elect whether he would prosecute his action against the defendant, Hatch, or against the defendant, The Contral Construction Company. 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 plaintiff having wholly failed by this evidence to establish or show a joint liability upon the part of the defendants for the wrongful and negligent act complained of, and it clearly appearing from the evidence offered that plaintiff’s cause of action, if any he had, against the defendants or either of them, was a several and not a joint cause, of ac-' tion, the motion interposed by the defendant, Hatch, at the conclusion of the testimony, and after plaintiff had rested his case, asking that plaintiff be then required to elect against which of the defendants he would further proceed, was made in time, was well taken, and the same was therefore properly sustained, and an order was properly made by the court requiring the plaintiff to make such election. The plaintiff having refused to comply with or obey this order, the court under the authority of Subdivision 5 of Section 5314, Revised Statutes, properly dismissed the action without prejudice. Said section provides as follows: “An action may be dismissed without prejudice to a future action * * * 5. By the court for disobedience by the plaintiff of an order concerning the proceedings in the action.”

Finding no error in this record to the prejudice of the plaintiff in error, the judgment of the circuit court will be

' Affirmed.

Shauck, C. J., Price, .Summers, Spear and Davis, JJ., concur.  