French v. Central Construction Co.

Citations

• 76 Ohio St. (N.S.) 509

Syllabus

<p>Joint action against master and servant — For wrongful act of latter —Can not be maintained, when — Plaintiff must elect — Section 5314, Subdivision 5, Revised Statutes — Law of negligence — • Court procedure.</p> <p>,1. An action can not be maintained jointly against master and servant for tlje wrongful and negligent act of the latter if in the particular case the master’s liability for such wrongful and negligent act arises solely from the relationship between them under the doctrine of respondeat superior. Clark v. Fry, 8 Ohio St., 358, approved and followed.</p> <p>2. Where, in an action for negligence, master and servant are improperly joined as defendants, the plaintiff in such action may be required to elect against which of said defendants he will proceed. And where in a proper case, on motion of one of the defendants, an order of election is made by the court, and plaintiff refuses to comply with or obey such order, the court may, under authority of Subdivision 5 of Section 5314, Revised Statutes, dismiss the action without prejudice to a future action.</p>