Soltz v. Colony Recreation Center
| Decision Date | 15 June 1949 |
| Docket Number | 31493. |
| Parties | SOLTZ et al. v. COLONY RECREATION CENTER et al. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. The doctrine of res ipsa loquitur may be applicable where (a) the instrumentality causing the injury was under the exclusive management and control of the defendant and (b) 'the accident occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed.' Fink v. New York Central R. Co., 144 Ohio St. 1, 56 N.E.2d 456, approved and followed.
2. Claimed errors relating solely to issues other than defendant's negligence will not justify reversal of a judgment rendered on a general verdict for the defendant where:
(c) The plaintiff did not request the court to submit any interrogatories to the jury, and
(d) The answers of the jury to interrogatories submitted at the defendant's request and without objection of the plaintiff are consistent with a finding that the defendant was not negligent.
Appeal from Court of Appeals, Lucas County.
On January 12, 1944 a modern building owned by the plaintiff Margery B. Soltz was destroyed by fire. The plaintiff Home Insurance Company of New York had insured the building against fire. After the fire, the insurance company paid the individual plaintiff $178,619.04 representing 90% of the amount agreed upon between them as the loss due to the fire, the other 10% having been carried by the individual plaintiff as coinsurance. The plaintiffs then brought an action against the defendants to recover $198,518.98 which, it was alleged, represented the total fire damage to the building. It was alleged that this damage was caused by the negligence of the defendants.
At the time of the fire, the defendants occupied a portion of the basement in which they operated bowling alleys. The fire originated about 4 a. m. in a room in that portion of the premises so occupied by defendants. At that time, two employees of the defendants were alone in this room and were engaged in refinishing bowling pins. This process involved the use of an inflammable liquid known as 'Pin Life.'
The trial resulted in a verdict for the defendants, upon which judgment was rendered by the Common Pleas Court.
Plaintiffs appealed to the Court of Appeals which reversed the judgment of the trial court and remanded the case for a new trial.
The case is now before this court on appeal by defendants, a motion to certify having been allowed.
Boggs Boggs & Boggs and Smith, Klein & Klivans, Toledo, for appellees.
Williams, Eversman, Middleton, Leatherman & Black, John F. Jones, Toledo, and Alfred A. Benesch, Cleveland, for appellants.
In Support of the judgment of reversal by the Court of Appeals, plaintiffs first contend that the trial court erred in (a) failing to charge the jury on the doctrine of res ipsa loquitur, (b) refusing to give plaintiffs' requested instruction No. 5 relating to res ipsa loquitur, and (c) giving defendants' special request to charge No. 6, which eliminated the doctrine of res ipsa loquitur from the case.
Therefore, the first question to be considered is whether the so-called doctrine of res ipsa loquitur applied to the facts disclosed by the evidence in this case.
A recent definition of the doctrine is found in paragraph two of the syllabus in Fink v. New York Central R. Co., 144 Ohio St. 1, 56 N.E.2d 456, 457, which reads:
'In Ohio the rule of res ipsa loquitur is not a rule of substantive law but is a rule of evidence which permits the jury, but not the court in a jury trial, to draw an inference of negligence where the instrumentality causing the injury was under the exclusive management and control of the defendant and the accident occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed.'
However, as stated by Weygandt, C. J., in the court's opinion in Hiell v. Golco Oil Co., 137 Ohio St. 180, at page 182, 28 N.E.2d 561, 562, 'the mere statement of the rule is as usual less difficult than its application.'
It is usually relatively simple to determine whether 'the instrumentality causing the injury was under the exclusive management and control of the defendant.' Most of the cases, in which this court has held that the doctrine was not applicable, have been decided on the ground that the instrumentality was not under the exclusive management and control of the defendant. See City of Cleveland v. Pine, 123 Ohio St. 578, 176 N.E. 229, 74 A.L.R. 1224; St. Marys Gas Co. v. Brodbeck, Adm'r, 114 Ohio St. 423, 151 N.E. 323; Thomas v. Youngstown Municipal R. Co., 122 Ohio St. 610, 174 N.E. 252; City of Cleveland v. Amato, 123 Ohio St. 575, 176 N.E. 227; Sherlock v. Strouss-Hirshberg Co., 132 Ohio St. 35, 4 N.E.2d 912; Renneckar v. Canton Terminal Restaurant, Inc., 148 Ohio St. 119, 73 N.E.2d 498.
The difficulty in determining the applicability of the doctrine arises where the instrumentality causing the injury is under the exclusive management and control of the defendant and the court is then called upon to determine the question whether 'the accident occurred under such circumstances that in the ordinary course of events it would not have occurred if ordinary care had been observed.'
In determining that question, some help can be obtained from considering what this court has decided with regard to other accidents under other circumstances.
The term 'res ipsa loquitur' was first mentioned by this court in Cincinnati Traction Co. v. Holzenkamp, 74 Ohio St. 379, at page 384, 78 N.E. 529, 6 L.R.A.,N.S., 800, 113 Am.St.Rep. 980, decided in 1906. Apparently, the term first appeared in a reported decision in Byrne v. Boadle, 2 H. & C., 722, 159 Eng.Rep.R., 299, decided in 1863, but did not come into use in the courts of the United States until the early 1900s, although its use thereafter spread quite rapidly. See 9 Wigmore on Evidence, 3 Ed., 377 and 378.
However, the doctrine of res ipsa loquitur had, in effect, been applied by this court without naming it in Iron R. Co. v. Mowery, 36 Ohio St. 418, 38 Am.Rep. 597, where an injury was received through a collision of trains, and in Cleveland, C., C. & I. R. Co. v. Walrath, 38 Ohio St. 461, 43 Am.Rep. 433, where the berth of a sleeping car fell on a passenger. The propriety of applying the doctrine in a personal injury action by a passenger against a common carrier had also been suggested, although the doctrine was not referred to by its present-day label, in the opinion by Sutliff, C. J., in Columbus & Xenia R. Co. v. Webb's Adm'x, 12 Ohio St. 475, at page 496. On the other hand, this court, in effect, had refused to apply the doctrine, although the cases involved did not refer to it by its present-day label. See Huff v. Austin, 46 Ohio St. 386, 21 N.E. 864, 15 Am.St.Rep. 613, holding that the mere fact of an explosion of a steam engine did not raise a prima facie presumption of negligence on the part of defendants, and Ruffner v. Cincinnati, Hamilton & Dayton R. Co., 34 Ohio St. 96, holding that no inference of negligence arose from the mere fact that damage by fire to property adjacent to a railroad track was caused by sparks emitted from locomotives.
Thus, it will be noted that, even before the doctrine was referred to by its presentday label, this court had, in effect, recognized that it might be applicable in actions for personal injuries brought by passengers against common carriers. The case of Cincinnati Traction Co. v. Holzenkamp, supra, where the present-day label of the doctrine was first mentioned by this court, also involved that kind of a case, as did the recent decision in Fink v. New York Central R. Co., supra. See, also, Winslow v. Ohio Bus Line Co., 148 Ohio St. 101, 73 N.E.2d 504.
With reference to these cases, it is significant that this court has said that a common carrier has the duty 'to exercise the highest degree of care in the carriage of passengers.' Cleveland, C., C. & I. R. Co. v. Manson, 30 Ohio St. 451; May Department Stores Co. v. McBride, 124 Ohio St. 264, 178 N.E. 12.
In addition to the passenger common carrier cases, the doctrine of res ipsa loquitur has been applied by this court to cases involving the delivery by a druggist of an injurious drug to a customer, instead of a harmless drug which had been asked for, Edelstein v. Cook, 108 Ohio St. 346, 140 N.E. 765, 31 A.L.R. 1333; the sudden bursting of the engine on a car, which was carrying employees of defendant, causing it to jump the track, Walters v. Baltimore & O. S.W. R. Co., 111 Ohio St. 575, 146 N.E. 75; high voltage electric wires which fell on a highway, Glowacki, a Minor, v. North Western Ohio R. & Power Co., 116 Ohio St. 451, 157 N.E. 21, 53 A.L.R. 1486, see Loomis v. Toledo Railways & Light Co., 107 Ohio St. 161, 140 N.E. 639; an explosion of a highly explosive substance, Hiell v. Golco Oil Co., supra; accidents where motor vehicles had left the highway upon which they were being driven, Scovanner v. Toelke, 119 Ohio St. 256, 163 N.E. 493; Morrow v. Hume, Adm'x, 131 Ohio St. 319, 3 N.E.2d 39, and Weller, Exr'x. v. Worstall, 129 Ohio St. 596, 196 N.E. 637; and an accident where the defendant fell asleep while driving a motor vehicle. Collins, a Minor v. McClure, 143 Ohio St. 569, 56 N.E.2d 171.
In all the foregoing instances in which the doctrine has been applied by this court, it is significant that the agency or occurrence involved represented a dangerous threat of serious injury or death.
The doctrine of res ipsa loquitur was also referred to by its present...
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