Ayers v. Woodard

Decision Date06 February 1957
Docket Number34841,Nos. 34838,s. 34838
Citation166 Ohio St. 138,140 N.E.2d 401,1 O.O.2d 377
Parties, 1 O.O.2d 377 AYERS, Appellant, v. WOODARD, Sheriff, et al., Appellees. AYERS, Appellee, v. WOODARD, Sheriff, et al., Appellants.
CourtOhio Supreme Court

Syllabus by the Court

1. The test to be applied by a trial court in ruling on a motion for judgment notwithstanding the verdict is the same test such court must apply in ruling on a motion for a directed verdict. Paragraph two of the syllabus of McNees v. Cincinnati Street Ry. Co., 152 Ohio St. 269, 89 N.E.2d 138, approved and followed.

2. In order to sustain either a motion for judgment notwithstanding the verdict or a motion for a directed verdict, the evidence received upon the trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court's determination in disposing of either of such motions. Paragraph two of the syllabus of McNees v. Cincinnati Street Ry. Co., 152 Ohio St. 269, 89 N.E.2d 138, and paragraph one of the syllabus of Durham v. Warner Elevator Mfg. Co., 166 Ohio St. 31, 139 N.E.2d 10, approved and followed.

3. A presumption is a procedural device which is resorted to only in the absence of evidence by the party in whose favor a presumption would otherwise operate; and where a litigant introduces evidence tending to prove a fact, either directly or by inference, which for procedural purposes would be presumed in the absence of such evidence, the presumption never arises and the case must be submitted to the jury without any reference to the presumption in either a special instruction or a general charge.

This action was instituted in the Common Pleas Court of Summit County against the sheriff of that county and the National Surety Corporation, the company which bonded the sheriff, to recover damages alleged to have been caused by an assault and battery on the plaintiff committed by a duly commissioned deputy sheriff acting in his official capacity.

Liability of the sheriff is predicated upon Section 311.05, Revised Code, which provides:

'The sheriff shall be responsible for the neglect of duty or misconduct in office of each of his deputies.'

Upon the trial of the issues, a verdict was returned in favor of the plaintiff, whereupon the defendants filed motions for judgment notwithstanding the verdict and for a new trial. The trial court sustained the prior motion and contemporaneously, pursuant to Section 2323.181, Revised Code, sustained the motion for a new trial conditioned upon the reversal on appeal of the sustention of the motion for judgment notwithstanding the verdict.

On appeal, the Court of Appeals reversed the ruling on the motion for judgment notwithstanding the verdict and remanded the cause for a new trial. The Court of Appeals, however, did rule favorably to the defendants as to a charge given by the trial court concerning a presumption that the deputy sheriff was acting in his official capacity at the time of the incident.

Plaintiff appealed to this court from that part of the judgment of the Court of Appeals which remanded the cause for a new trial.

Defendants appealed to this court from that part of the judgment of the Court of Appeals which reversed the trial court's rendition of a judgment notwithstanding the verdict.

Both appeals were consolidated for consideration herein, subsequent to the allowance of motions to certify the record. Further facts are stated in the opinion.

Merryl F. Sicherman, Akron, for Joe P. Ayers.

Buckingham, Doolittle & Burroughs, Dwight Parsons, Herman E. Rabe and Gilbert A. Hartz, Akron, for Woodard, Sheriff, et al.

MATTHIAS, Judge.

The controversy presented concerns plaintiff's evidence as to one issue of his case--whether the deputy sheriff was acting within the scope of his capacity as an officer of the law at the time of the incident. Plaintiff, of course, in order to recover from the sheriff, has the burden of proving that the deputy was.

The facts regarding this issue which were proved at trial by plaintiff are, in the words of the Court of Appeals, as follows:

'* * * Joe P. Ayers was employed as an electrician by Goodyear Aircraft Corporation. * * * Jerome A. McCarty was employed by Goodyear Aircraft Corporation as a guard, whose duty it was to see that unauthorized persons did not go on the premises of the corporation, or to places within the corporation, except upon proper identification.

'Mr. McCarty, as a plant guard, was also a deputy sheriff of Summit County. He wore a distinctive blue uniform and a badge, and carried a revolver.

'On April 22, 1954, Joe P. Ayers, in the course of his work, went to the hangar to inspect some lights.

'About a week before that date, he had received a call to proceed to the hangar to balance the circuits feeding the lights installed for the employees of Goodyear who were constructing a blimp for the U. S. Navy. Some of the lights were out, and Ayers had to go on a car, the undercarriage of the blimp. In compliance with requirements, he registered at the nearby police booth and exchanged the regular Goodyear Aircraft employee's badge for a special 'N' (Navy) badge before proceeding into the car to remedy the trouble, since such territory was classified as a restricted, confidential and secret area under United States Navy regulations.

'On April 22, upon a similar call, Ayers again went to the hangar. When he arrived there, he walked past the police booth and approached the blimp to observe the lights on the 'car' and the wiring leading from the ground to the 'car.' He did not register, nor did he exchange his regular badge for the special 'N' badge. The lights were on and there was no necessity for him to enter the 'car' of the blimp.

'While standing near the small building, or shanty, where the plant guards kept identification badges, Ayers was approached from the rear by Jerome A. McCarty, who took a large screwdriver from a pouch which was strapped around Ayers' waist. McCarty returned this tool to its pouch, then took Ayers by the arms and began pushing him backward. After being pushed back a few steps, Ayers resisted and began pushing McCarty; whereupon McCarty, by raising one of his knees, struck Ayers in the groin, causing Ayers certain injuries.'

There is, as stated by the Court of Appeals, a conflict of evidence regarding the possibility of plaintiff's injury being the result of 'horseplay.'

The trial court, at the request of plaintiff, charged the jury as follows:

'The court charges you as a matter of law that although Jerome A. McCarty was appointed a deputy sheriff upon application of Goodyear Aircraft Corporation and his salary was paid by such corporation, his acts will be presumed to have been performed in his capacity as such deputy sheriff, and anyone who claims that Jerome A. McCarty was not acting as a deputy sheriff must show affirmatively that such was the case, by overcoming such presumption by a preponderance of the evidence.'

In sustaining the motion for judgment notwithstanding the verdict, the court found that 'reasonable minds may draw one conclusion only from the evidence * * * that * * * Mr. McCarty's wrongful act was committed in play and was private or personal in nature,' and that 'such wrongful act was not done under color of * * * or by virtue of his office, as a deputy sheriff.'

The plaintiff assigns as error the rendering of a judgment notwithstanding the verdict. This court said, in the second paragraph of the syllabus of McNees v. Cincinnati Street Ry. Co., 152 Ohio St. 269, 89 N.E.2d 138, 140:

'Ordinarily, in order to sustain a motion for judgment notwithstanding a general verdict, the evidence received upon the trial and the facts established by admissions in the pleadings and in the record must be such that the court would have been required, upon a proper motion therefor, to dircct a verdict for the party seeking such judgment.' (Emphasis added.)

And in Durham v. Warner Elevator Mfg. Co., 166 Ohio St. 31, 139 N.E.2d 10, 11, this court said, in the first paragraph of the syllabus:

'* * * a motion to direct a verdict for one of the parties requires that the evidence be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the...

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