Summary
holding that malice is the intention or design to harm another by inflicting serious injury, without excuse or justification, by an act which in and of itself may not be unlawful
Summary of this case from Pavarini. v. City of MacedoniaOpinion
No. 68-470
Decided May 14, 1969.
Pleading — Petition alleging wanton and intentional misconduct — Amendment alleging simple negligence — Relates back to time original petition filed — New independent cause of action not stated — Amendment made after time limitation for commencement of action.
Where a petition, alleging wanton and intentional misconduct, is amended to allege simple negligence, such amendment does not have the effect of stating a new, independent and distinct cause of action, and where the amendment is made after the expiration of the time limited for the commencement of the action it relates back to the time the original petition was filed and the cause of action stated in the amended petition is not barred by such limitation of time.
CERTIFIED by the Court of Appeals for Franklin County.
This cause originated in the Court of Common Pleas of Franklin County.
The plaintiff in his petition alleges that, on or about October 27, 1962, he was forcibly ejected from a tavern operated by the defendants, resulting in the injuries of which he complains. On September 13, 1963, he filed a petition in the Common Pleas Court of Franklin County, alleging that he was a business invitee in the tavern operated by the defendants; that, without probable or reasonable cause, the defendants "unlawfully, wantonly and wrongfully, maliciously and recklessly" made and perpetrated a brutal, violent and vicious attack upon him, and with great force and violence picked him up, carried him, hurled him through the door and into a car parked in front of the premises, resulting in the injuries complained of and for which he asked both compensatory and punitive damages.
On October 29, 1965, the plaintiff, with leave of court, filed an amended petition, alleging substantially the same incident but in somewhat different terms. Plaintiff, in the amended petition, alleges that he was unlawfully and with unnecessary force picked up, pushed and hurled out the front door into the parked car, eliminating the words "recklessly," "wantonly," "wrongfully" and "maliciously." He alleges further that he was roughly and negligently ejected; that he had not been requested to leave; that he had not refused to leave; and that the defendants used force, when no force was necessary, and used greater force than was necessary.
An answer, filed by the defendants, consisted of a general denial and a specific plea of the statute of limitations.
On September 29, 1967, the trial of the cause began. After the opening statement of counsel for the plaintiff, which essentially set forth the content of the amended petition, the defendant moved that the amended petition be dismissed on the ground it was barred by the statute of limitations. The motion was allowed and, on October 6, 1967, a judgment of dismissal and final judgment for the defendants was entered on the journal.
The Court of Appeals held that the action was not barred by the statute of limitations, reversed the judgment of the Court of Common Pleas and remanded the cause to that court for further proceedings. Thereupon, the defendants filed a motion to certify the case to this court on the ground that the judgment of the Court of Appeals was in conflict with the judgment of the Court of Appeals for Cuyahoga County in the case of Williams v. Pressman, 69 Ohio Law Abs. 470. The Court of Appeals granted the motion to certify.
Messrs. Applegate, Bolon, Boyd Alban and Mr. Robert E. Boyd, Jr., for appellee.
Messrs. Williams, Murray, Deeg Ketcham, Mr. Gordon E. Williams, Mr. James D. Booker and Mr. Charles R. Andrews, for appellant.
The first and basic issue presented by the facts of this case involves the applicability of the two-year statute of limitation, applicable to actions for bodily injury, to the amended petition. If this had been the first petition filed, the statute would have run by the date of its filing, whether it be considered to state a cause of action in battery or in negligence. However, it was an amended petition, and the original petition was filed well within the statutory period of limitation for either battery or negligence. In Brown v. Cleveland Baseball Co., 158 Ohio St. 1, this court reaffirmed the holding of Louisville Nashville Rd. Co. v. Greene, 113 Ohio St. 546, that where no new, independent cause of action, distinct from that contained in the original petition, is alleged in an amended petition, under our liberal statutory rules pertaining to amendment, the amendment could be made after the statute had run and relates back to the original filing of the petition.
The question thus raised is whether the amended petition sets up a new independent cause of action, distinct from that alleged in the original petition. Appellant contends that the original petition did not in any way state a cause of action in negligence but only one in assault and battery, and that the change in the amended petition to a cause of action in negligence was a change to a new cause of action which did not relate back, and hence is barred by the statute of limitations. This was essentially the position of the trial court when it granted defendant's motion for judgment made after the opening statement by plaintiff.
Analysis of the original petition reveals that the plaintiff alleged therein that he was a business invitee in the tavern operated by defendants; that "without probable or reasonable cause" he was "unlawfully, wantonly and wrongfully, maliciously and recklessly" attacked by defendants, picked up, carried, pushed and hurled through the door of the premises and into an automobile parked in front of the premises, thereby causing the injuries of which complaint is made. Both compensatory and punitive damages were asked for in the prayer.
This is not a simple allegation of assault and battery, with intent to harm or injure the plaintiff. The petition sets up the status of a business invitee, which gives rise to a duty of reasonable care on the part of the defendants. It then alleges acts characterized as "wanton" and specifies those acts. In Kellerman v. J.S. Durig Co., 176 Ohio St. 320, it was said in the second paragraph of the syllabus:
"Wanton misconduct charged against a defendant implies a disposition to perversity and a failure to exercise any care toward those to whom a duty of care was owing when the probability that harm would result from such failure was great and such probability was actually known, or in the circumstances ought to have been known to the defendant."
This approaches, but is not identical, with a wilful or intentional act where actual specific intent to harm is present. Payne v. Vance, 103 Ohio St. 59.
But the plaintiff alleges also that the act was done maliciously. Malice has been given many shades of meaning but among these is the meaning of wilful and intentional design to do injury.
" * * * Malice in the legal sense signifies a wilful design to do another injury, and this regardless of the fact that such design was prompted by hatred or revenge, or by hope of gain. * * * " 27 Ohio Jurisprudence 2d 560, Section 9.
In Webster's Third New International Dictionary, "malice" is defined as: "Intention or desire to harm another usually seriously through doing something unlawful or unjustified."
We conclude that in his original petition the plaintiff intended to, and did, allege wanton misconduct, and also intentional misconduct, the latter being assault and battery.
This is buttressed by the inclusion in the prayer of a request for punitive damages.
"It is an established principle of law in Ohio that in actions to recover damages for tort, which involves the ingredients of fraud, malice, or insult, or the wanton or reckless disregard of the legal rights of others, the jury may go beyond the rule of mere compensation of the party aggrieved, and reward exemplary or punitive damages. * * *" 16 Ohio Jurisprudence 2d 281, Section 145.
In Cohen v. Busey, 158 Ohio St. 159, 168, it is said:
"We conclude, therefore, that an amendment of a petition alleging negligent injury of the plaintiff by the defendant by adding thereto allegations characterizing such injury as wilful or intentional does not have the effect of stating an additional cause of action; that 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 that such amendment relates back to the time when the action was commenced."
Since adding allegations of intent to a negligence action adds no new cause of action, the end result is a single cause of action sounding both in intentional and negligent tort. And since this is one cause of action, whether we start with an intentional tort and add an allegation of intent, the end result is the same. No new distinct and independent cause of action has been added, and, for purposes of the statute of limitation, the amendment dates from the date of filing of the original petition. The facts of the Cohen case, supra, show the amendment of a petition, alleging negligence, to include an allegation of "wanton" misconduct.
See, also, Jurrus v. Toledo, Fostoria Findlay Electric Ry. Co., 124 Ohio St. 251.
In the instant case, the plaintiff originally pleaded wanton misconduct and wilful tort. In his amended petition, he alleges negligence. In accordance with the above reasoning, the change would be within the scope of a single cause of action, and would not thereby add an additional or new cause of action. For purposes of the statute of limitation, it would date from the date of the filing of the original petition.
Since the original petition was filed well within the statutory period, the trial court was in error in holding the action barred by the statute, and the Court of Appeals was correct in reversing the judgment of the trial court.
We therefore hold that the trial court was in error and that the judgment of the Court of Appeals, reversing the judgment of the trial court, was correct.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, SCHNEIDER and DUNCAN, JJ., concur.
COLE, J., of the Third Appellate District, sitting for HERBERT, J.