Mercer v. Uniroyal, Inc. , 49 Ohio App. 2d 279 ( 1976 )

Plaintiffs Robert Mercer and his wife Ann appeal from a summary judgment rendered in favor of Uniroyal, Inc., dismissing Uniroyal as a party defendant. Simultaneous with this summary judgment, the trial court rendered a summary judgment in favor of defendant American Stevedoring Corporation, and no appeal was taken by plaintiffs from this judgment. Plaintiff Ann Mercer's claim is for a loss of consortium arising from her husband's injuries.

Robert Mercer (hereinafter designated as plaintiff) was an employee of American Stevedoring Corporation and worked as a truck driver. On June 27, 1973, he was riding in a truck leased by Uniroyal from Avis Truck Rental. He was resting in the sleeping compartment of the cab while his co-employee, John Walker, was driving. The truck was on a hauling trip for Uniroyal. The left front tire blew out resulting in a collision and injuries to plaintiff.

There was a lease agreement between American Stevedoring Corporation and Uniroyal whereby American Stevedoring Corporation furnished its employee, plaintiff, to Uniroyal. Uniroyal had control of the truck drivers, including plaintiff, in all phases of the operation of the trucks. Under the agreement, American Stevedoring Corporation paid the wages of plaintiff, payroll taxes, workmen's compensation and employer's liability insurance, and assumed certain other obligations for the benefit of plaintiff.

The original complaint of plaintiffs predicated the liability of Uniroyal only on the theory of negligence in failing to repair dangerously defective tires, which defect was known to Uniroyal and the other defendants. No products liability claim based on a breach of warranty, express or implied, was alleged in the original complaint. On December 9, 1974, Uniroyal's motion for a summary judgment against plaintiffs was granted, and Uniroyal was dismissed as a party defendant. Plaintiffs, on April 11, 1975, were granted leave to file a first amended complaint.

Plaintiff's first amended complaint alleged that his injuries resulted directly from the defective front tire blowing out, causing a collision. This first amended complaint predicated the liability of Uniroyal upon the breach of express and implied warranties.

The summary judgment in favor of Uniroyal was based upon the first amended complaint and the responsive pleadings; the answers to interrogatories; and the response to a request for admissions and affidavits. The record in this case contains facts which required the application by the trial court ofDaniels v. MacGregor (1965), 2 Ohio St. 2d. 89, which holds that a leased employee is an employee for workmen's compensation purposes of the party leasing the employee's services. Thus, for workmen's compensation purposes, plaintiff was an employee of Uniroyal at the time and place he was injured. Uniroyal is a complying employer within the meaning of the Ohio Workmen's Compensation Law. See R. C. 4123.35 and 4123.74.¹ Plaintiff also filed a workmen's compensation claim.

The first assignment of error states as follows:

"I. The trial court erred in sustaining defendant Uniroyal's motion to dismiss plaintiffs' first amended complaint.

"A. A litigant is not required to prosecute multiple causes of action in a single action.

"B. Plaintiffs' first amended complaint stated a cause of action separate and distinct from that stated in plaintiffs' original complaint.

"C. Plaintiffs' first amended complaint should not have been dismissed for reason of res judicata."

This assignment of error attacks the summary judgment entry on plaintiff's first amended complaint which expresses, as one reason for being granted, "that plaintiffs' complaint against defendant Uniroyal is subject to dismissal for reason of res adjudicata * * *." The summary judgment on the original complaint was held by the trial judge to be res judicata as to the damage claim asserted in the later first amended complaint, although the first amended complaint proceeded on a different theory — namely, products liability based upon a breach of express and implied warranties.

The application of the doctrine of res judicata to the facts and pleadings in this case is misplaced. The summary judgment rendered on December 9, 1974, for Uniroyal on the original complaint was not a final appealable order, since the trial court did not make an "express determination," pursuant to Civ. R. 54(B), that the entry was the final judgment. Its interlocutory character is also apparent from the fact that thereafter, on April 11, 1975, the trial court granted plaintiff leave to file a supplemental or amended complaint. The plaintiff, pursuant to such leave, filed instantor his first amended complaint. A summary judgment which is interlocutory; subject to revision before a judgment adjudicating all the claims of all the parties, pursuant to Civ. R. 54(B); or interlocutory, because it is superseded by a subsequent first amended complaint filed with leave of court, does not permit the application of the doctrine of res judicata to the allegations of the first amended complaint. Coffman v. Federal Laboratories,Inc. (C. A. 3, 1948), 171 F.2d 94, cert. den. 336 U.S. 913; see 6 Moore's Federal Practice, paragraph 56.20 (3.-4); see, also, 32 Ohio Jurisprudence 2d 201, 396, 413, Judgments, Sections 4, 194, 209; Restatement of Judgments, Sections 1, 41, 43 and 52 (1942).

The first assignment of error is well taken.

The second assignment of error presents a novel and difficult issue. It reads as follows:

"II. The trial court erred in sustaining defendant Uniroyal's alternative motion for summary judgment.

"A. Plaintiffs' product liability cause of action was not subject to summary judgment on the basis of Revised Code Section4123.74, since it did not arise out of the employer/employee relationship."

This assignment requires the interpretation of R. C. 4123.74, relative to the term "employers" and the phrase "any injury * * * received or contracted by an employee in the course of or arising out of his employment * * *." Plaintiff asserts that he is not an injured employee seeking to recover damages from a negligent employer, but that he is a reasonably foreseeable user injured as a result of the explosion of a defective tire manufactured and sold by Uniroyal. Plaintiff asserts that his amended complaint states a cause of action for the breach of an implied and express warranty.

The second assignment of error raises the application of the dual-capacity doctrine and whether Uniroyal was acting in a second capacity that confers obligations upon it which are independent of those imposed upon it as an employer. See 2A Larson, Workmen's Compensation Law, Section 7280, where the author indicates that the most striking example of the principle was found in the California case of Duprey v. Shane (1952), 241 P.2d 78, aff'd 249 P.2d 8. At page 14-117, he states the following:

"The decisive dual-capacity test is not concerned with how separate or different the second function of the employer is from the first but with whether the second function generates obligations unrelated to those flowing from the first, that of employer."

The author, citing the case of Costanza v. Mackler (1962),34 Misc.2d 188, 227 N.Y.S.2d. 750, a truck case where a loose floor board struck the plaintiff, the truck being owned by a fellow employee rented to the employer, asserted that the question is whether there should be the obliteration of valuable and longstanding causes of action where the statutory language destroying that cause of action is unclear. Any doubt should be resolved in favor of preserving rather than abolishing the right. See 2 Larson, supra at page 14-123. In turning to the interpretation of the statute, the question arises whether under all the circumstances the action was based on the fact of employment or on some other relationship. See, 81 American Jurisprudence 2d 742, Workmen's Compensation, Section 53. A reference is made in the above text to the Michigan case ofPenagos v. North Detroit General Hospital (1971), 35 Mich. App. 554, 192 N.W.2d 542, 50 A. L. R. 3d 501. In that case, the plaintiff, an employee of the defendant, cut her mouth on a foreign particle which was in a piece of pie she purchased in the employer's cafeteria on her lunch hour. The Court of Appeals of Michigan held that the plaintiff's case was based upon the vendor-vendee relationship and had nothing to do with the fact that she was employed by the defendant and, therefore, she was not required to first seek relief from the Workmen's Compensation Department. In doing so, the court affirmed the opinion of Horace W. Gilmore of the Wayne County Circuit Court. An Ohio case of similar import is Tipple v. The High StreetHotel Co. (1941), 70 Ohio App. 397. Paragraph 1 of the syllabus, which contains the facts and holding of the court, reads as follows:

"An employee was engaged by a hotel company in the operation of a cigar stand in the hotel and was solely responsible to the hotel for such operation. She worked eight hours per day and had no specific time off for meals. She had the right to make arrangements with other employees for the operation of the stand while she ate her meals. The hotel operated a restaurant near the stand, at which restaurant the employee was entitled to a 40 per cent discount, and at which place she frequently ate, keeping the cigar stand under observation and returning to it to wait upon customers. On the day in question the employee had reported for work and had not left the premises of her employer. She ordered her meal in the hotel restaurant and was in the act of eating the meal in the restaurant when she observed unattended customers at the cigar stand. She returned to the stand, waited upon the customers, and finished her meal at the stand. In an action by the employee against the hotel company to recover damages arising from food poisoning resulting from such meal, the hotel set up as a defense that this was an injury occurring in the course of, and arising out of, the employee's employment and was covered by the Workmen's Compensation Act, and that under Section 35, Article II of the Constitution, the employer was not liable to respond in damages. Held: The injury did not occur in the course of, and did not arise out of, the employment."

A similar Ohio case is Coston v. Carnegie-Illinois SteelCorp. (1952), 69 Ohio Law Abs. 375. In this case, an employee was held not to be entitled to workmen's compensation for injuries suffered when he swallowed a fragment of glass concealed in a piece of pie which he had purchased from a factory store which was located on his employer's premises, but was apparently operated by an independent entrepreneur. The court quoted with approval the case of In re McNicol (1913), 215 Mass. 497,102 N.E. 697, to the effect that an injury is received in the course of employment when it occurs while the workman is doing the duty which he is employed to perform and it arises out of the employment when it is apparent that a casual connection exists between the conditions under which the work is performed and the resulting injury. That court reasoned that such definitions would exclude from coverage any injury which occurs as a result of a hazard to which the workman would have been equally exposed apart from his employment.

In the instant case, the hazard was not necessarily one of employment, but was one common to the public in general. See Young, Workmen's Compensation Law of Ohio (2d ed., 1971), page 91 (1963). When the initiating cause is not a hazard of employment, there is no causal connection between the employment and the injury.

As is stated in Young, supra at 42: "The rationale is that workmen's compensation is in the nature of an occupational insurance and is to be treated in the same manner as general insurance for this purpose. Multiple recovery by an injured employee is a situation which many employers find difficult to accept, but the concept is not unique to workmen's compensation." See, also, Trumbull Cliffs Furnace Co. v.Shachovsky (1924), 111 Ohio St. 791.

It was only a matter of circumstance that the tire on the truck in which the plaintiff was riding was a Uniroyal tire rather than a Sears, Goodyear or Goodrich. In recent years, corporations and employers have entered a variety of fields and economic factors have promoted diversification rather than specialization. Conglomerates have become the rule.² A corporation's economic structure should not dictate the right of the injured to recover or that each new corporate merger erases a like number of causes of action.³ For the foregoing reasons, the second assignment of error is well taken. Plaintiff should have his opportunity to establish a cause of action based upon product liability.

The judgment of the Court of Common Pleas of Ottawa County is reversed and the cause is remanded for further proceedings according to law.

Judgment reversed.

BROWN, P. J., concurs.

WILEY, J., concurs in part and dissents in part.

¹ The pertinent part of R. C. 4123.74 reads as follows:

"Employers who comply with Section 4123.35 of the Revised Code shall not be liable to respond in damages at common law or by statute for any injury, or occupational disease, or bodily condition, received or contracted by an employee in the course of or arising out of his employment * * *."

² From 1955 to 1959, there was an annual average of 1,162 mergers. From 1960 to 1969, there were 1,664 mergers annually and by 1967 through 1969 there was an average of 3,605 mergers per year. Between 1962 and 1968, 110 of Fortune's 500 industrials were absorbed by mergers. See M. Green, B. Moore B. Wasserstein, The Closed Enterprise System (1972), at p. 10-11.

³ Uniroyal is reported to own or operate 80 plants and to market 1,200 product lines in 100 countries. Its products, in addition to tires, include chemicals, synthetic rubber, plastics, leisure products such as golf balls, bags, shoes, sports jackets, luggage, canoe hulls, garden hose, also transportation equipment including fan belts, batteries, instrument panels, and a host of other products too numerous to list. See Uniroyal, Inc. Annual Report, 1975 and Moody's Industrial Manual, Vol. 2, 1975.