concurring in part and dissenting in part. With the utmost of respect, I must write separately in this case because the majority decision contains a litany of ideas and concepts that are, in my judgment, inaccurate, especially given the language of former R.C. 2315.19 read in conjunction with R.C. 2307.31 and 2307.32.
I concur with paragraphs one and two of the syllabus. I cannot concur with paragraphs three and four of the syllabus.
There is no question that both former and current R.C. 2315.19 apply only where a plaintiff is contributorily negligent. There also is no question that only parties are to be included under both current and former versions of the statute. In fact, in the current (1988) version of the statute, the word “established” has been added, so that R.C. 2315.19(B) now reads: “If contributory negligence * * * is asserted and established as an affirmative defense * * *.” (Emphasis added.) This differs from the former version which read, where “ * * * contributory negligence is asserted as a defense * * * ” (former R.C. 2315.19[B]) and “[t]he total amount of damages that would have been recoverable by the complainant but for his negligence; ” (former R.C. 2315.19[B][1]). (Emphasis added.) Thus, given this language, it is clear that when there is no finding of contributory negligence on the part of a plaintiff, then the court or jury goes no further in making the findings required by former R.C. 2315.19(B)(1), (2) and (C) and current R.C. 2315.19(B)(1), (2), (3) and (4), and the case is decided like any other negligence case (plaintiff v. defendants]). If there is more than one defendant, then the defendants are left to and between themselves to the remedies provided to them by R.C. 2307.31 and 2307.32.
Therefore, when paragraph three of the syllabus of the majority implies that former R.C. 2315.19 is applicable for the purpose of allocating liability among joint tortfeasors even where there is no negligence upon the part of a plaintiff, this is in error. When there is no negligence on the part of plaintiff, R.C. 2315.19 has no application. Further, the use by the majority of the word “or” between the words “several” and “allocated” confuses two separate legal principles. I would change the word “or” to “and.”
Accordingly, paragraph three of the syllabus should read:
“Upon a finding of negligence attributable to a plaintiff, former R.C. 2315.19 provided for several and allocated liability among joint tortfeasors party to an action. Unless there is a finding of plaintiff negligence, former R.C. 2315.19 has no application.”
Since, in the case before us, there was no plaintiff negligence, joint and several liability automatically lies — that is the law. R.C. 2315.19 has no application and, hence, the interrogatories concerning allocation or apportion*38ing of fault among joint tortfeasors are never reached under R.C. 2315.19. Thus, paragraph four of the syllabus is also in error.
Perhaps the most egregious part of the majority opinion is the language that “ * * * all potential tortfeasors amenable to process should be joined as defendants pursuant to Civ.R. 14 and 20, and cross-claims for contribution should also be pled in anticipation of the possibility that a plaintiff may not be found contributorily negligent. * * * ”
This statement has at least two problems. First, it makes defendants (and maybe also plaintiffs) join parties that for tactical reasons they may not want to have joined. Second, the citation to Civ.R. 14 and 20 is inappropriate. Both of these rules are permissive both in nature and language. The majority probably bastardizes these rules to meet its desired result because it cannot use the compulsory joinder rule, Civ.R. 19.1, as by its own explicit terms, it would not apply.
The laudable objectives of the majority (avoiding inconsistent verdicts, conserving judicial resources and harmonizing statutes) can be obtained without skewering the law. If there is no contributory negligence on the part of plaintiff or if the question is submitted to the jury and the jury finds no plaintiff negligence, then R.C. 2315.19 has no further relevance, but joint tortfeasors are not precluded from using Civ.R. 49(B) and/or R.C. 2307.31 and 2307.32 which would accomplish the objectives sought by the majority. Civ.R. 49(B) fits perfectly — even down to the language of “[t]he interrogatories may be directed to one or more determinative issues whether issues of fact or mixed issues of fact and law.” Further, “[t]he court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict.” (Emphasis added.) Civ.R. 49(B).
The majority takes exception to how both the trial court and the court of appeals handled the case at bar. I am not as troubled as is the majority, given that both lower courts had to work with former R.C. 2315.19, and, in doing so, gave their own clearly defensible reading of the statute before entering their judgments. Fortunately, at least for me, a reading of the record resolves the issues in this case.
Interrogatory number one asks if “ * * * DEFENDANT A.P. CONTROLS, INC. WAS NEGLIGENT?” If the jury’s answer was “NO,” then it was instructed to return a verdict for the defendant A.P. Controls, skip interrogatory number two and proceed to interrogatory number three — which interrogatory involved Barmet. If, however, the jury answered interrogatory number one “YES,” then the jury was instructed to go to interrogatory *39number two, which interrogatory asked if the negligence of A.P. Controls was a proximate cause of the death of Walter Eberly. The jury was then instructed, in interrogatory number two, “(If your answer is NO, return a verdict for the defendant A.P. Controls, Inc. Then proceed to interrogatory No. 3).” The jury was given no other instruction (as it was in the interrogatories determining negligence) to go to another interrogatory (i.e., number three — the Barmet interrogatory) if its answer was “YES” to interrogatory number two. The jury answered “YES” to both interrogatories number one and two.
In short, the jury found A.P. Controls, Inc. to be negligent and that its negligence was a proximate cause of the death of Walter Eberly. The jury was then asked, in interrogatory number nine, what damages were sustained by the estate of Walter Eberly “ * * * WHICH DIRECTLY AND PROXIMATELY RESULTED FROM THE NEGLIGENCE OF ANY OF THE DEFENDANTS?” (Emphasis added.) In interrogatory number nine, the jury found damages of $1,000,000. Then, most interestingly, the verdict form, signed by all eight jurors, found for plaintiffs (plural) against “ * * * the Defendant [singular], the said A.P. Controls * * *.”
While, after reading former R.C. 2315.19, I could have interpreted the statute in the manner that the trial court did, I find, after reviewing in detail the record and especially the interrogatories and the verdict form, that the court of appeals was right in its ultimate assessment of the case and, therefore, I would affirm the judgment of the court of appeals.
Accordingly, I concur in part and dissent in part.
Sweeney, J., concurs in the foregoing opinion.