dissenting. In my opinion, our syllabus and our decision and also the reasons stated therefor in the opinion in Cincinnati v. Emerson (1897), 57 Ohio St. 132, 48 N. E. 667, require reversal of this judgment and final judgment for defendant. As a reading of the report of that ease will clearly demonstrate, every reason advanced for the judgment being rendered in the instant case was thoroughly considered and definitely rejected by the decision of this court in that case.
In quoting from the Restatement of the Law, Judgments 159, the majority opinion apparently concedes that, if the instant case “is based upon the same cause of action as that upon which the first action was based,” judgment should be rendered for defendant.
In determining “what constitutes a cause of action” within the meaning of that term as there used, the majority opinion describes “three general views.” I find the following description of those views, quoted from Fleming James, Jr., Civil Procedure (1965), 553 (cited by the majority opinion as the latest source thereof) more understandable than that stated in the majority opinion:
“* # # (1) Those which define it in terms of the remedial right which is being enforced and limit it to a single right. This is the narrowest # * * definition. It comes close to an attempt to carry forward the formularly system of the common law. It would, in effect, let a plaintiff who had a single injury arising out of a single occurrence, bring as many suits as he could devise legal theories of recovery— *40at least until he succeeded in one of them. (2) Those which define ‘cause of action’ in terms of a single * * * breach of a primary duty. * * # This test * * * limits a cause of action in terms of the primary right or rights invaded. These are the rights given by substantive law as distinguished from the remedial or procedural rights emphasized by the first test. Because of this * * * limitation, it is possible for a single line of conduct or occurrence to give rise to two or more causes of action. It will do so when it happens to invade two or more primary rights, even of the same party. (3) Those which give the term ‘cause of action’ a purely factual content. Probably the framers of the codes had some such test in mind, for the complaint was to state the ‘facts constituting a cause of action, ’ and the court was to apply whatever legal theories or characterizations it found to be appropriate to the facts pleaded and proved. Those who would define ‘cause of action’ in factual terms do not, however, all agree upon the size of the factual grouping which should be held to constitute a single cause of action, and therefore to support only a single lawsuit. The narrowest version of this view would require that the same evidence support both actions. A broader version, however, would not require identity of evidence but would define ‘cause of action’ broadly to include the group of operative facts pragmatically determined [i. e., determined from a practical standpoint] by the court as those which should be treated as a unit, having in mind the dictates of trial convenience, the intention of the parties, the needs of business practice, and the like.”
Prior to Norwood v. McDonald (1943), 142 Ohio St. 299, 52 N. E. 2d 67, this court had consistently adopted a broad version of the third view defining a cause of action in factual terms, i. e., a broad version of what the majority opinion refers to as the “factual unit theory.” Cincinnati v. Emerson, supra (57 Ohio St. 132); Covington and Cincinnati Bridge Co. v. Sargent (1875), 27 Ohio St. 233, 238, and paragraph one of the syllabus.
Although the Norwood case adopted the so-called “fae-*41tual unit theory,” it may be questionable whether it properly applied that theory when it held that a separate cause of action was involved in each of the two actions there involved. However, that it definitely adopted that theory is apparent from paragraph four of the syllabus of the case which reads:
“To determine whether a second action is based upon the same cause of action as that litigated in a former action claimed to be a bar to the second action under the doctrine of res judicata, the primary tests are the identity of in-vestitive facts creating the right of action in each case; the identity of the evidence necessary to sustain each action; and the accrual of the alleged rights of action at the same time.”
On its facts, the Norwood case is wholly different from the instant case. The first action there tried was one to establish that the plaintiff was the equitable owner of real estate, because he had paid the consideration for a conveyance thereof to defendant’s decedent so that there was a resulting trust thereof for plaintiff. In the second action, plaintiff claimed that he was the common-law spouse, and, as a result, sole heir of that decedent. Obviously, the evidence offered in the first case was almost wholly different from that in the second case. This is stressed in the opinion.
In the instant case, even plaintiff’s brief conceded ‘ ‘ that the claims of each petition are ex delictu and grounded on a single factual background” and “there was identity of subject matter in the two petitions.”
In my opinion, therefore, if the previous decisions and pronouncements of law by this court are followed, they require the conclusion that the instant action, to recover damages on the ground that they were caused by defendant Ryan’s negligence, is based on the same cause of action as was the previous action to recover those same damages on the ground that they were caused by the fraud and deceit of defendant Ryan. In the first action, Ryan’s activities are characterized as involving fraud and deceit; *42and, in the instant action, the same activities are characterized as involving negligence.
The majority opinion in the instant case states that, in Fielder v. Ohio Edison Co. (1952), 158 Ohio St. 375, 109 N. E. 2d 855, 35 A. L. R. 2d 1365, “this court * * * adhered to” the second of the above described three views as to what constitutes a cause of action, i. e., what it refers to as the “primary right — primary duty concept.” In my opinion, there is absolutely nothing in the syllabus or in the four-to-three decision of that case which will support that statement.
However, this so-called “primary right — primary duty concept” was specifically approved in paragraph four of the syllabus of Vasu v. Kohlers, Inc. (1945), 145 Ohio St. 321, 61 N. E. 2d 707; but later disapproved and rejected when that syllabus paragraph was specifically overruled in Rush v. Maple Heights (1958), 167 Ohio St. 221, 147 N. E. 599.
Another decision of this court which is inconsistent with the so-called “primary right — primary duty concept” is Schweinfurth v. C., C., C. & St. L. Ry. Co. (1899), 60 Ohio St. 215, 54 N. E. 89, where paragraph six of the syllabus reads in part:
“A petition * * * which states all the material facts of the transaction or occurrence resulting in the person’s death, contains but one cause of action, though they comprise a number of co-operating acts and omissions, some of which were willful or intentional, and others the negligent failure to observe proper care.”
Also, in Cohen v. Bucey (1952), 158 Ohio St. 159, 107 N. E. 2d 333, paragraph two of the syllabus reads:
“An amendment of a petition alleging negligent injury of the plaintiff by the defendant by adding thereto allegations characterizing such injury as willful or intentional does not have the effect of stating an additional cause of action, such amendment may be made in the interest of justice after the expiration of the time limited for the prosecution of such an action, and such amendment *43relates back to the time when the action was commenced. * *
The majority opinion and the syllabus in the instant case eventually base their determination for the plaintiff npon a conclusion that ‘‘a single suit against Ryan and others for fraud and deceit and against Ryan alone for negligence would have united causes of action not affecting all the parties and would have constituted a misjoinder of causes of action.”
In doing this, the majority apparently had in mind that (as suggested by Fleming James, Jr., Civil Procedure, supra, 556) a descriptive term such as “cause of action” does not itself furnish the reasons why the factual unit under the third or so-called “factual unit theory” should be limited by any given boundary, “and that these reasons are to be sought in terms of the practical and policy goals which a procedural system should seek to attain, rather than in terms of the verbal concepts which should be simply the tools of the system.”
These practical and policy goals are described in Fleming James, Jr., Civil Procedure, supra, as follows (see also, to the same effect, the opinions in Cincinnati v. Emerson, supra [57 Ohio St. 132] and Covington and Cincinnati Bridge Co. v. Sargent, supra [27 Ohio St. 233, 238]):
“Wherever there will be a large overlap of issues or evidence if two trials are held, it is wasteful to society and harassing to the adversary to have more than one, and there should be no more than one unless there is some very good reason.”
Apparently, the majority find that “good reason” in the inability of the plaintiff to join in the first action any claim for negligence against Ryan with plaintiff’s claim for deceit and fraud against Ryan and others.
In my opinion, this conclusion, that there could be no such joinder, is an incorrect conclusion. Meyer v. Cincinnati Street Ry. Co. (1952), 157 Ohio St. 38, 104 N. E. 2d 173 (permitting joinder of action for damage or injury claimed to have been proximately caused by independent *44but concurrent wrongful acts of two defendants, one of whom was under common-law duty to exercise only ordinary care and the other of whom, a common carrier, was under duty by contract to exercise the highest degree of care). See also Schweinfurth v. Railway Co., supra (60 Ohio St. 215), and Cohen v. Bucey, supra (158 Ohio St. 159).
Even if we assume that there could not be such join-der, this court, in a comparable situation and after thorough consideration, rejected that as a reason for refusing to apply res judicata. Cincinnati v. Emerson, supra (57 Ohio St. 132). See, in addition to the syllabus and decision, 57 Ohio St. at 134, 135, 136, 141, 142, 143.