Rush v. City of Maple Heights

Plaintiff was riding on the back of her motorcycle, being driven by her husband. The motorcycle hit a pothole. She sued the city for negligence in the maintenance of the roads and received a judgment in the amount of $100. The city appealed and the judgment was affirmed.

The plaintiff then attempted to sue the city again for injuries arising out of the same accident. She received a jury verdict in the amount of $12,000. During the trial, the Court charged the jury that the issues of the defendant’s negligence were not at issue, because they had previously been settled in favor of the plaintiff.

Opinion by: HERBERT, J.

The eighth error assigned by the defendant is that "the trial and appellate courts committed error in permitting plaintiff to split her cause of action and to file a separate action in the Cleveland Municipal Court for her property damage and reduce same to judgment, and, thereafter, to proceed, in the Cuyahoga County Common Pleas Court, with a separate action for personal injuries, both claims arising out of a single accident."

Other facets of this question have been before the court before.

In the case of Vasu v. Kohlers,...plaintiff operating an automobile came into collision with defendant's truck, in which collision he suffered personal injuries and also damage to his automobile. At the time of collision, plaintiff had coverage of a $ 50 deductible collision policy on his automobile. The insurance company paid the plaintiff a sum covering the damage to his automobile, whereupon, in accordance with a provision of the policy, the plaintiff assigned to the insurer his claim for such damage.

In February 1942, the insurance company commenced an action in the Common Pleas Court of Mahoning County against Kohlers, Inc., the defendant in the reported case, to recoup the money paid by it to cover the damage to Vasu's automobile.

In August 1942, Vasu commenced an action in the same court against Kohlers, Inc., to recover for personal injuries which he suffered in the same collision.

In March 1943, in the insurance company's action, a verdict was rendered in favor of the defendant, followed by judgment.

Two months later an amended answer was filed in the Vasu case, setting out as a bar to the action for recovery of damages for the personal injuries suffered by plaintiff the judgment rendered in favor of defendant in the insurance company case. A motion to strike that defense having been sustained, a second amended answer was filed omitting allegations as to such judgment. A trial of the action resulted in a verdict for plaintiff, upon which judgment was entered.

On appeal to the Court of Appeals the defendant claimed that the Court of Common Pleas erred in sustaining plaintiff's motion to strike from the defendant's answer the defense of res judicata claimed to have arisen by reason of the judgment in favor of the defendant in the action by the insurance company.

The Court of Appeals reversed the judgment of the Court of Common Pleas and entered final judgment in favor of defendant.

This court reversed the judgment of the Court of Appeals, holding in the syllabus, in part, as follows:

"1. If the owner of a single cause of action arising out of a single tortious act brings an action against his tort-feasor, he may have but one recovery; and, in case he fails to recover, he may not maintain a subsequent action on the same cause of action, even though he has failed to include his entire cause of action or elements of damage in his original action.

"2. If an owner of a single cause of action has a recovery thereon, the cause of action is merged in the judgment; but if he fails to recover on his claimed cause of action and judgment goes against him, such judgment is res judicata and a bar to a second action on the same cause of action.

"* * *

"4. Injuries to both person and property suffered by the same person as a result of the same wrongful act are infringements of different rights and give rise to distinct causes of action, with the result that the recovery or denial of recovery of compensation for damages to the property is no bar to an action subsequently prosecuted for the personal injury, unless by an adverse judgment in the first action issues are determined against the plaintiff which operate as an estoppel against him in the second action.

"5. A right, question or fact in issue which was necessarily determined by a court of competent jurisdiction in a judgment which has become final, cannot be disputed or litigated in a subsequent suit between the same parties, although the subsequent suit is based upon a different cause of action.

"6. Where an injury to person and to property through a single wrongful act causes a prior contract of indemnity and subrogation as to the injury to property, to come into operation for the benefit of the person injured, the indemnitor may prosecute a separate action against the party causing such injury for reimbursement for indemnity moneys paid under such contract.

"7. Parties in privy, in the sense that they are bound by a judgment, are those who acquired an interest in the subject matter after the beginning of the action or the rendition of the judgment; and if their title or interest attached before that fact, they are not bound unless made parties.

"8. A grantor or assignor is not bound, as to third persons, by any judgment which such third persons may obtain against his grantee or assignee adjudicating the title to or claim for the interest transferred, unless he participated in the action in such manner as to become, in effect, a party."

[C]ases, distinguishing and explaining the Vasu case, have not changed the rule established in paragraph four of the syllabus of the latter case, holding that injuries to both person and property suffered by the same person as a result of the same wrongful act are infringements of different rights and give rise to distinct causes of action.

However, it is contended here that that rule is in conflict with the great weight of authority in this country and has caused vexatious litigation. The following quotation from 1 American Jurisprudence, 494, Section 114, states this question well:

"It sometimes happens that a single wrongful or negligent act causes damage in respect of both the person and the property of the same individual, as, for instance, where the owner of a vehicle is injured in a collision which also damages the vehicle. In such a case, the question arises as to whether there are two causes of action or only one, and the authorities are in conflict concerning it. The majority rule is that only one cause of action arises, the reason of the rule being that as the defendant's wrongful act is single, the cause of action must be single, and that the different injuries occasioned by it are merely items of damage proceeding from the same wrong. * * *

"In other jurisdictions, the rule is that two causes of action result from a negligent act which inflicts injury on a person and his property at the same time. This conclusion has been reached in different jurisdictions by different lines of reasoning."

Upon examination of decisions of courts of last resort, we find that the majority rule is followed in the following cases in each of which the action was between the person-suffering injury and the person committing the tort, and where insurers were not involved, as in the case here.

The minority rule, that separate actions may be maintained to recover for personal injuries and for damages to property resulting from the same wrongful act, is set forth in the following cases: [The Court then goes on to cite several cases.]

As to the rule in New York, however, it is noted in the opinion in the Vasu case…that "the court, in deciding the Reilly case, took a position contra to an earlier holding in the same state in the case of Howe v. Peckham… a case frequently cited (see quotation from Phillips' Pleading, infra) as supporting the single-cause-of-action rule."

The reasoning behind the majority rule seems to be well stated in the case of Mobile & Ohio Rd. Co. v. Matthews ... as follows:

"The negligent action of the plaintiff in error constituted but one tort. The injuries to the person and property of the defendant in error were the several results and effects of one wrongful act. A single tort can be the basis of but one action. It is not improper to declare in different counts for damages to the person and property when both result from the same tort, and it is the better practice to do so where there is any difference in the measure of damages, and all the damages sustained must be sued for in one suit. This is necessary to prevent multiplicity of suits, burdensome expense, and delays to plaintiffs, and vexatious litigation against defendants. * * *

"Indeed, if the plaintiff fail to sue for the entire damage done him by the tort, a second action for the damages omitted will be precluded by the judgment in the first suit brought and tried."

The minority rule would seem to stem from the English case of Brunsden v. Humphrey. … The facts in that case are set forth in the opinion in the Vasu case..., concluding with the statement:

"The Master of the Rolls, in his opinion, stated that the test is 'whether the same sort of evidence would prove the plaintiff's case in the two actions,' and that, in the action relating to the cab, it would be necessary to give evidence of the damage done to the plaintiff's vehicle. In the present action it would be necessary to give evidence of the bodily injury occasioned to the plaintiff, and of the sufferings which he has undergone, and for this purpose to call medical witnesses. This one test shows that the causes of action as to the damage done to the plaintiff's cab, and as to the injury occasioned to the plaintiff's person, are distinct.'"

The fallacy of the reasoning in the English court is best portrayed in the dissenting opinion of Lord Coleridge, as follows:

"It appears to me that whether the negligence of the servant, or the impact of the vehicle which the servant drove, be the technical cause of action, equally the cause is one and the same: that the injury done to the plaintiff is injury done to him at one and the same moment by one and the same act in respect of different rights, i. e. his person and his goods, I do not in the least deny; but it seems to me a subtlety not warranted by law to hold that a man cannot bring two actions, if he is injured in his arm and in his leg, but can bring two, if besides his arm and leg being injured, his trousers which contain his leg, and his coat-sleeve which contains his arm, have been torn."

There appears to be no valid reason in these days of code pleading to adhere to the old English rule as to distinctions between injuries to the person and damages to the person's property resulting from a single tort. It would seem that the minority rule is bottomed on the proposition that the right of bodily security is fundamentally different from the right of security of property and, also, that, in actions predicated upon a negligent act, damages are a necessary element of each independent cause of action and no recovery may be had unless and until actual consequential damages are shown.

Whether or not injuries to both person and property resulting from the same wrongful act are to be treated as injuries to separate rights or as separate items of damage, paragraph three of the syllabus in the Markota case gives us the answer that a plaintiff may maintain only one action to enforce his rights existing at the time such action is commenced.

The decision of the question actually in issue in the Vasu case is found in paragraphs six, seven and eight of the syllabus, as it is quite apparent from the facts there that the first judgment, claimed to be res judicata in Vasu's action against the defendant, was rendered against Vasu's insurer in an action initiated by it after having paid Vasu for the damages to his automobile. That case is considered and discussed at length in 166 A. L. R., 870.

Upon further examination of the cases from other jurisdictions, it appears that in those instances where the courts have held to the majority rule, a separation of causes of action is almost universally recognized where an insurer has acquired by an assignment or by subrogation the right to recover for money it has advanced to pay for property damage.

In some instances those jurisdictions recognize the right of the insurer to become a party to the action and recover in the single action that part of the damages to which it has become subrogated. …

In other states, and particularly in those having statutes requiring actions to be brought by the real party in interest, the courts have recognized the right of the insurer to bring a separate action to recover in its own name for that part of a single cause of action to which it has become entitled by payment of damages. The following cases are illustrative: [The Court goes on to cite several cases].

Section 2307.05, Revised Code, requires actions to be prosecuted in the name of the real party in interest, as was done by Vasu's insurer.

Coming again to the defendant's eighth assignment of error, it is noted that the rule attributed to the Ohio courts, as it is stated in 1 Ohio Jurisprudence (2d), 360, is based primarily on the Vasu case, although prior lower court decisions reaching a different conclusion are cited and recognized therein with the statement that "these cases are impliedly overruled."

Apparently, much of the vexatious litigation, with its attendant confusion, which has resulted in recent years from the filing of separate petitions by the same plaintiff, one for personal injuries and one for property damage although sustained simultaneously, has grown from that one decision, this case presenting a good example.

In the light of the foregoing, it is the view of this court that the so-called majority rule conforms much more properly to modern practice, and that the rule declared in the fourth paragraph of the syllabus in the Vasu case, on a point not actually at issue therein, should not be followed.

We, therefore, conclude and hold that, where a person suffers both personal injuries and property damage as a result of the same wrongful act, only a single cause of action arises, the different injuries occasioned thereby being separate items of damage from such act. It follows that paragraph four of the syllabus in the Vasu case must be overruled.

It is not necessary in view of this conclusion to consider the other errors assigned herein.

Accordingly, the judgment of the Court of Appeals is reversed, and final judgment is entered for defendant.

Judgment reversed and final judgment for defendant.


STEWART, J., concurring.

In the case of Vasu v. Kohlers, Inc., … Judge Hart stated in part:

"The rule at common law and in a majority of the states of the union is that damages resulting from a single wrongful act, even though they include both property and personal injury damages, are, when suffered by the same person, the subject of only one action against the wrongdoer."

However, he referred to the fact that there were a number of state jurisdictions which followed the English rule, laid down in Brunsden v. Humphrey… and known as the two-causes-of-action rule, and then proceeded to announce that rule as the Ohio rule, and it was written into the fourth paragraph of the syllabus of the Vasu case. If it had been necessary to decide the question whether a single tort gives rise to two causes of action as to the one injured by such tort, I would be reluctant to disturb that holding. However, neither the discussion in the Vasu case as to whether a single or double cause of action arises from one tort nor the language of the fourth paragraph of the syllabus was necessary to decide the issue presented in the case, and obviously both such language and such paragraph are obiter dicta and, therefore, are not as persuasive an authority as if they had been appropriate to the question presented.

As to the case of Brunsden v. Humphrey, supra, which is the basis for the minority rule in this country, it seems to me that the dissenting opinion of Lord Coleridge, as quoted in the majority opinion in the present case, is not only highly persuasive but logically unanswerable, and that this court is justified in departing from the obiter dicta of the Vasu case.


ZIMMERMAN, J., dissenting.

I am not unalterably opposed to upsetting prior decisions of this court where changing conditions and the lessons of experience clearly indicate the desirability of such course, but, where those considerations do not obtain, established law should remain undisturbed in order to insure a stability on which the lower courts and the legal profession generally may rely with some degree of confidence. …