ON APPLICATION FOR REHEARING.
No. 3132.
BY THE COURT:Submitted on application of appellee for rehearing. The brief of appellee suggests the application of the two-issue rule to the verdict and judgment, urges that the evidence on behalf of the plaintiff was sufficient' to require that the question be presented to the jury as to the ratification by appellant of the acts of its agents upon which express malice could be predicated, and finally that if the court was right in its construction of the law of Ohio as to punitive damages, it went too far in this case in holding that as a matter of law the facts adduced did not raise an issue as to such damages against the Lazarus Company.
We, of course, are familiar with the general application of the two-issue rule as found in the‘leading cases in Ohio. We know of no instance and counsel have cited none where the rule has been applied to a verdict which may have included both compensatory and punitive damages. We are inclined to the belief that the situation presented by this judgment is analogous to that wherein the court charges generally upon *50two propositions of law, one of which is correct and the other incorrect, and it being impossible to determine which proposition of law the jury accepted, the charge must be held to be prejudicially erroneous. Insurance Co. v Purcell, 19 O. C. C. 135; Rapp v Becker, 4 O. C. C. (N. S.) 139. It has been held that the two-issue rule does not apply where a court in its charge injected a new issue into the case, for example, contributory negligence, when there is no evidence thereof: Kolp v Stevens, 15 Abs 14.
In this case the court properly submitted to the jury the issues on both causes of action, namely, false arrest and malicious prosecution. The amount of the verdict is such that it might properly include compensatory damages only upon a finding in behalf of the appellee on both causes of action. Thus, it may be that the verdict does not include any punitive damages. However, punitive damages were permitted to be assessed on both causes of action. If the amount of the verdict in this case includes compensatory damages only and was returned upon the first cause of action only, we could not support it because we believe it would then be excessive. So that the only basis upon which we could affirm this judgment would be that either it included compensatory damages only on both causes of action, or compensatory damages on one cause of action, namely, the second. We are in grave doubt if the two-issue rule would permit us to indulge either inference to support the judgment as against our conclusion that the evidence did not support the submission of the question of punitive damages to the jury. There is also presented the effect of the testimony as to the financial worth of the Lazarus Company which was admissible only upon the question of punitive damages. The jury, therefore, had before it evidence which it had no right to consider, the effect of which would be manifestly prejudicial to the defendant.
We considered ratification by the Lazarus Company of the malicious acts of Triska and whether or not they were authorized, and discussed the question at length in our original opinion. It may be that we did not expressly mention ratification, but it was included in our general consideration of the matter.
If the evidence, in our judgment, presented an issue as to the right of the jury to #award punitive damages, we would ■ not disturb the judgment because we find no error of commission in the charge of the court, and' if the facts adduced under the law constitute the elements of exemplary damages, the construction which the jury gave to them would not be disturbed.
We recognize full well that the law' in Ohio as to the *51conditions under which punitive damages may be awarded against a corporation is uncertain and in our judgment should be clarified because of the conflict, as we view it, between the early case of Railway Company v Dunn, 19 Oh St 162; and the later cases, Columbus Railway & Power Company v Harrison, 109 Oh St 526; and Tracey v Athens & Pomeroy Land & Coal Co., 115 Oh St 299.
No. 3135. Carrington T. Marshall, Columbus and L. D. Agler, for plaintiff-appellee. Wilson & Rector, Columbus, A. M. Calland, Columbus and J. V. Ralston, Columbus, for defendants-appellants.We further recognize that the principle upon which punitive damages may be awarded against a corporation under the later cases appears to be different than that controlling the award of such damages against an individual.
We have interpreted the pronouncement of the later cases in the Supreme Court to the best of our ability and discussed them at length in our former opinion. Nothing of advantage would result by a restatement of the principles involved.
The application for rehearing will be denied.
GEIGER, P. J., BARNES and HORNBECK, JJ., concur.THOMAS, Plaintiff-Appellee v. F. & R. LAZARUS CO. et, Defendants-Appellants.
Ohio Appeals, Second District, Franklin County.
Decided January 17, 1941.
OPINION
By HORNBECK, P. J.This is the appeal of defendants, John J. Triska and The Columbus Stores Mutual Protective Association from a judgment against them and each of them for the sum of $3,000 in favor of plaintiff-appellee.
The appellants assign 16 errors which are common to their appeal and the appeal of the F. & R. Lazarus & Company, No. 3132, in which appeal a decision is handed down today. The discussion of these assignments of error will in the main suffice for assignments on this appeal with some further observation upon the question of the right of the jury to award punitive damages against the Columbus Stores Mutual Protective Association.
Triska, acting for his association had apparent authority to do all things authorized by the articles of incorporation of the Protective Association.' Among these was the protection of its subscribers against abuses in trade and for the investí*52gation of fraudulent debtors, thieves, burglars, embezzlers, shoplifters and persons obtaining money, credit, property or merchandise by false pretenses, theft, embezzlement, burglary or other unlawful means; and to do any and all things necessary or incident thereto.
This authority in Triska to do all things necessary or incident to the protection of the Lazarus Company against the obtaining of money by unlawful means, in our judgment, even upon the restricted rule in Ohio, is broad enough to include malicious acts which the jury had the right to find that Triska had committed. The court then committed no error in submitting the question of punitive damages as to the Protective Association.
Two other errors are assigned, No. 17 and No. 18, which are pertinent to this appeal only, namely,
17. Error in overruling defendants’ demurrer to the amended petition on the ground that several causes of action are improperly joined.
18. Error in overruling motion of defendants to amend the journal entry of date April 22, 1939, upon the overruling of their demurrer to the amended petition on the ground that several causes of action were improperly joined.
The action of the court on the demurrer is made the subject of extended briefs, particularly by the applicants and many authorities are cited. It is their claim that under §11306 GCt the causes of action for false arrest and malicious prosecution may not be joined because the action for false arrest involves injury to person (4) §11306 GC, and malicious, prosecution involves an injury to character (5) §11306 GC. Many cases are cited and the argument is made that by analogy certain decisions of our court of last resort support the contention made on behalf of appellants.
We shall not discuss at length the cases cited but are content to say that, in our judgment, there was no misjoinder of causes of action and that the demurrer upon that ground was properly overruled. 1 C. J. S., pages 1214, 1234 and 1251, 1 Am. Jur., page 474.
In 1 C. J. S., page 1214, it is said,'
“At common law, false imprisonment can not be joined with malicious prosecution, as the remedy for the former is trespass, and for the latter is case, or with slander; but the rule is otherwise under statutory provisions abolishing the distinction between trespass and case.”
At page 1251,
“A cause of action for' malicious prosecution may be joined with one for false imprisonment, the causes not being necessarily inconsistent, * * *.”
*53At page 1234,
“To constitute inconsistency so as to preclude a joinder the causes must be inherently repugnant and contradictory,- or contrary, the one to the other.”
The numerous California cases cited are not in our opinion authority against the joinder in this case. For instance, in Collyer v Kress Company et (Cal.) 44 Pa. (2d) 638, the plaintiff had joined the action of false imprisonment and malicious prosecution and the court had submitted the cause upon issues drawn upon both causes of action. The jury found for the defendant on the charge of malicious prosecution and for the plaintiff upon the claim of false imprisonment. The gist of the decision is that the verdict was excessive because to reach it, the jury must have given consideration to testimony which was germane only to the cause of action for malicious prosecution.
The case on its facts is similar to the instant case and, although it does not appear that the question of joinder was raised, it is significant that under the California Code, which is much like ours, the two causes of action were joined in the same petition.
The other California cases cited are not at variance with Collyer v Kress Company. They hold that the same facts upon which a claim of false imprisonment is predicated will not support the charge of malicious prosecution but in Warfield v Krueger (Cal.) 274 Pa. 764, it is recognized in the syllabus that,
“If acts complained of had been based on different facts, causes of action for false imprisonment and malicious prosecution might be united under Code, Civ. Proc. Par. 427.”
We have examined all of the California cases cited and find no difficulty in reconciling them upon the theory of proper joinder of false imprisonment or arrest and malicious prosecution where the facts plead constitute the elements of the-two offenses.
The trend of modern judicial expression is toward the utmost liberality in permitting joinder of causes of action. We are satisfied that no prejudice resulted to appellants by the overruling of their demurrer.
The 18th assignment of error is not well made because the court speaks only through its journal and it is immaterial whether or not it is in accord with that which may have been stated in an opinion or decision prior thereto.
The judgment against John J. Triska and the Columbus Stores Mutual Protective Association will be affirmed.
GEIGER, J., concurs. BARNES, J., dissents.