Summary
stating that a case of primary and secondary liability arises where a person "by reason of his relationship to the wrongdoer or by operation of the law," is made liable
Summary of this case from Mills v. River Terminal Railway Co.Opinion
Nos. 30150 and 30151
Decided April 18, 1945.
Negligence — Misjoinder of parties — Interstate and local common carriers — Fatal injuries occasioned by local carrier transferring shipment in terminal area — Primary and secondary liability — Procedural question of joinder of parties not affected — Title 49, Section 302, U.S. Code — Transportation considered performed by interstate carrier within terminal area, when.
1. A petition filed in a court of this state, joining as defendants an interstate motor carrier and a local motor carrier and disclosing on its face that the fatal injuries complained of were occasioned solely by the negligence of the local carrier engaged by the interstate carrier to transfer an interstate shipment of goods in a terminal area within a municipality, presents a situation of primary and secondary liability and is demurrable for misjoinder of parties.
2. In such a case, Title 49, Section 302, U.S. Code, providing in substance that transportation by another motor carrier for an interstate motor carrier within a terminal area shall be considered to be performed by such latter carrier, is not designed to and does not affect the procedural question of joinder of parties or the question of primary and secondary liability.
APPEALS from the Court of Appeals of Hamilton county.
Kenneth B. Albers, ancillary administrator of the estate of Joseph Murphy, deceased, as plaintiff, instituted two actions in the Court of Common Pleas of Hamilton county. In one, damages were claimed for the pain and suffering experienced by plaintiff's decedent and for hospital and medical expenses charged to his estate by reason of his fatal injuries. In the other, damages were sought for the wrongful death of the decedent.
In the third amended petitions, with which we are here concerned, the Great Central Transport Corporation and H.R. Dallas were joined as parties defendant. The trial court sustained the demurrers of the corporation to such amended petitions on the ground that there were misjoinders of parties defendant and, plaintiff not desiring to plead further, judgments were entered dismissing the corporation from the actions.
On appeal, such judgments were affirmed.
In the respects which are controlling of decisions in these cases, the third amended petitions are the same, and in those respects allege:
"On or about January 25, 1943, the defendant, Great Central Transport Corporation [a corporation engaged in the interstate trucking business as an authorized motor common carrier by authority of the Interstate Commerce Commission], had transported a shipment of goods consigned to Knoxville, Tennessee, from its terminal in Detroit, Michigan, to its terminal in Cincinnati, Ohio. For the purpose of transferring said goods from the defendant's terminal in Cincinnati to the terminal of the carrier operating between Cincinnati and Knoxville, Tennessee, which terminal was also located in Cincinnati, the defendant, Great Central Transport Corporation, engaged the defendant, H.R. Dallas [a common carrier of property by motor truck in the city of Cincinnati], as its agent, servant and employee and authorized and required him to use his own truck and driver for said purpose, and exercised control over the manner and means by which said goods were transferred. Pursuant to said arrangement, defendant, H.R. Dallas, on said date at about 2:00 o'clock p. m. caused one of his employees, Carl F. Moore, to call for said goods at the terminal of the defendant, Great Central Transport Corporation, and transfer them in one of defendant, H.R. Dallas' trucks to the terminal of the Blue Gray Transportation Company, of Cincinnati, Ohio, a trucking company which operated between Cincinnati and Knoxville, Tennessee. Said truck was being backed to the loading platform of the Blue Gray Transportation Company for the purpose of transferring said goods when the rear part of said truck collided with the person of plaintiff's decedent, Joseph Murphy, crushing decedent's body between the rear of said truck and the loading platform.
"At the time of decedent's injury as aforesaid, decedent was in the lawful use of said premises where he had been engaged in his occupation of lettering a truck. Decedent was standing with the front part of his body facing the loading platform and with his back to that part of the premises from which Dallas' truck came as it backed to the loading platform and struck decedent. As a direct and proximate result of the injuries sustained plaintiff's decedent died the following day, January 26th, 1943. * * *
"Decedent's injuries and death were the direct and proximate result of the negligence of both defendants in the following respects, to wit:
"1. In operating said truck on the premises of the American Terminal Company without regard to the rights of other persons then using said premises.
"2. In causing said truck to be backed on said premises without ascertaining whether the plaintiff's decedent was standing in the path of said truck as it backed.
"3. In backing said truck on said premises without warning or attempting to warn plaintiff's decedent of the approach of said truck.
"4. In having said truck operated by a driver who at the time was only seventeen years and eight months of age, contrary to the safety regulations of the Interstate Commerce Commission of the United States, to wit: part I, rule 1.28 as amended, effective October 15th, 1940, which provides that drivers shall not be less than twenty-one years of age, and also contrary to the statutes of the state of Ohio governing minimum age requirements for drivers of motor transportation companies, and rule 2-G of the safety rules for owners, operators and truck drivers, of the Public Utilities Commission of Ohio, effective January 1st, 1941."
The cases are now in this court following the allowance of plaintiff's motions to require the Court of Appeals to certify its records.
Messrs. Stewart Beirne, for appellant.
Mr. John M. McCaslin and Mr. Robert Adair Black, for appellee.
Were the courts below in error in holding that misjoinders of parties defendant are disclosed by the allegations of the third amended petitions?
Section 11309, General Code, provides, among other things, that a defendant may demur to a petition where it appears on the face thereof that there is a misjoinder of parties defendant.
This court is firmly committed to the proposition that where one perpetrates a tort and another, by reason of his relationship to the wrongdoer or by operation of law, may be made to respond in damages therefor, a case of primary and secondary liability arises. Losito v. Kruse, Jr., 136 Ohio St. 183, 24 N.E.2d 705, 126 A. L. R., 1194; Herron v. City of Youngstown, 136 Ohio St. 190, 24 N.E.2d 708.
In the Losito case, it is stated in the opinion:
"* * * the primary liability, to the extent of full compensation, rests upon the party who actually commits the wrong, while the secondary liability to the same extent * * * rests upon the party who, by reason of his relationship to the wrongdoer, is also liable for the wrong committed. In such case there can be no joinder in a single action of the party primarily liable and the party secondarily liable because there is no joint liability. If they are joined in an action and this relationship appears on the face of the petition it is demurrable for misjoinder of parties defendant."
From an examination of the petitions herein it is evident that the injuries and death of plaintiff's decedent were attributable to the direct act, not of the Great Central Transport Corporation, but of the minor employee of H.R. Dallas.
Applying the Ohio rule to such situation, the petitions disclose that Great Central and Dallas are not properly joinable in the same action, primary and secondary liability being present.
But plaintiff contends that Title 49, Section 302, U.S. Code, a part of the Interstate Commerce Act, applies and is controlling of these controversies, and that under such enactment the liability of Great Central is primary, making it and Dallas properly joinable as defendants in the same action.
The pertinent portion of Section 302, above referred to, states in substance that the provisions of the chapter in which that section is found (with one exception not here involved) shall not apply to transportation by motor vehicle by any person (whether as agent or under a contractual arrangement) for an interstate motor carrier, in the performance within terminal areas of transfer or delivery service, but such transportation shall be considered to be performed by such interstate motor carrier as part of, and shall be regulated in the same manner as, the transportation to which such services are incidental.
As we interpret section 302, outlined above, it means simply that an interstate motor carrier cannot remove itself from interstate commerce and the control thereof by hiring another for transfer or delivery purposes within a terminal area — that it is liable for injury or loss as an interstate carrier within such area and may not escape by shifting responsibility to another motor carrier which it has engaged to transport passengers or property, and which actually does the harm.
We do not conceive that that federal statute purports to affect the procedural question of joinder of parties in an action brought in a state court by one injured in a terminal area through the fault of a local carrier acting for an interstate carrier. Such injured person at his election would still have the right to sue either carrier. Surely, the federal statute does not have the effect of eliminating the local carrier as a responsible actor in the harm done, nor does it merge the interstate carrier and the local carrier into a single entity.
By the allegations of the petitions the minor driver of Dallas' motor truck was the employee of Dallas and attributable to him. Great Central had no direct connection with the driver or immediate control over him, and there is nothing to indicate that it was cognizant of the driver's minority.
Great Central and Dallas were not in pari delicto in causing the injuries and death of plaintiff's decedent, and in this respect the present cases differ from the case of Wery v. Seff, 136 Ohio St. 307, 25 N.E.2d 692, relied on by the plaintiff. Here, no joint or combined and concurrent negligence of Great Central and Dallas existed when Murphy was fatally hurt.
In the instant cases, any liability of Great Central would arise solely by operation of law. It in no way contributed to produce Murphy's injuries and death. Under such circumstances, if Great Central were required to answer in damages it could claim indemnity from Dallas. Compare Globe Indemnity Co. v. Schmitt, 142 Ohio St. 595, 53 N.E.2d 790; Maryland Casualty Co. v. Frederick Co., 142 Ohio St. 605, 53 N.E.2d 795.
It is generally recognized that whenever the wrongful act of one person results in the imposition of liability on another, the latter may have indemnity from the former. But, as between tort-feasors whose joint or combined and concurrent negligence produces injury, placing them in pari delicto as to each other, contribution or indemnity is not allowed. Fidelity Casualty Co. v. Federal Express, Inc. (C.C.A. 6), 136 F.2d 35, 40; Royal Indemnity Co. v. Becker, 122 Ohio st., 582, 173 N.E. 194, 75 A. L. R., 1481.
The conclusion is unavoidable that the petitions in the cases before us reveal primary and secondary liability — primary liability on the part of Dallas and secondary liability on the part of Great Central. Plaintiff may maintain his actions against either Dallas or Great Central, but by the decisions of this court he cannot join both as defendants in the same cause.
Being of the opinion that the courts below correctly determined these controversies, the judgments of the Court of Appeals are affirmed.
Judgments affirmed.
WEYGANDT, C.J., BELL, TURNER, MATTHIAS and HART, JJ., concur.