In addition to the reasoning stated by Judge Conn, in all of which I concur, I suggest that the record in this case gives rise to a *Page 127 striking application of the substantial justice statute, Section 11364, General Code, especially as interpreted in the recent decision of Hallworth v. Republic Steel Corp., 153 Ohio St. 349, 91 N.E.2d 690. The premise of that statute is expressed in its first two sentences:
"In every stage of an action, the court must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party. No judgment shall be reversed, or affected, by reason of such error or defect."
Assuming, but not saying, that the demurrer to the amended petition should have been sustained on the ground that there was a misjoinder of parties defendant, and that there was error in the court's refusal to grant Aubry's motion to require the plaintiff to elect against which defendant he would proceed, and in the charge of the court upon concert of action by the defendants immediately before the collision and concurrence in causing plaintiff's damages, the only action this court could take would be to reverse the judgment and remand the cause for further proceedings.
Then, as would undoubtedly happen with all this pointed out to him, the plaintiff would remember that early in the trial two witnesses who were near Bennett road, one said 400 the other 500 or 600 feet from the place of collision, testified without objection that they saw the automobiles of these defendants pass them at a speed of 60 to 65 miles per hour. One testified that they were "side by side" and "there wasn't a split second when they — we seen a fire and I called in for the fire department." The other witness said the automobiles were "abreast" and that it was "just a matter of seconds" when the collision and fire took place.
From this evidence the obvious inference was that *Page 128 the defendants were racing at night on that important city street. Before a retrial, the plaintiff would undoubtedly amend his petition and expressly charge the defendants with concerted and concurrent negligent conduct which caused his damages. On the retrial, the evidence, particularly that of the two witnesses above quoted, would be the same as it was in this trial.
We do not have to guess or assume what the verdict of a jury would "probably" be on that evidence, the verdict in this case tells us that. In this respect, this record differs from that which Judge Taft discussed in Hallworth v. Republic Steel Corp.,supra, where the court in paragraph three of the syllabus said:
"Generally, in order to find that substantial justice has been done to an appellant so as to prevent reversal of a judgment for errors occurring at the trial, the reviewing court must not only weigh the prejudicial effect of those errors but also determine that, if those errors had not occurred, the jury or other trier of the facts would probably have made the same decision."
The evidence above quoted having been received without objection, as stated by Judge Conn in regard to an amendment of the petition which could have been made at that early stage of the trial, "the trial proceeded as if this had been done," and, I would add, substantial justice was done.