Burgard v. Eff

• Decision Date: 10 March 1965
• Citation: 205 N.E.2d 400,1 Ohio App.2d 483
• Parties: , 30 O.O.2d 503 BURGARD, Appellant, v. EFF et al., Appellees.
• Court: Ohio Court of Appeals

Page 483

1 Ohio App.2d 483

205 N.E.2d 400, 30 O.O.2d 503

BURGARD, Appellant, v. EFF et al., Appellees.

Court of Appeals of Ohio, Sixth District, Lucas County.

March 10, 1965.

Robert Z. Kaplan, Toledo, for appellant.

Ritter & Boesel, Toledo, for appellee Onard L. Duncan.

Finn, Manahan & Pietrykowski, Toledo, for appellee Herbert W. Eff.

GUERNSEY, Judge.

This action was initiated by a police officer of the city of Toledo for damages for personal injuries, and the appeal herein is by such plaintiff on questions of law from a summary judgment entered in favor of the defendants.

The plaintiff alleged generally in his petition that during the hours of darkness, while on official duty as the driver of a police scout car, he heard the roar of the motors of defendants' automobiles and thereupon observed them racing at speeds of 60 to 65 miles per hour; that as he pursued them they proceeded through red lights and stop signs, increasing their speeds, at times, to approximately 70 to 80 miles per hour, and gained distance on the plaintiff's scout car; that as the scout car rounded a curve in the street where a slight up-grade existed it went out of control, veered to the left over the curb, and struck a tree; that at all of such times 'defendants knew they were being pursued by the plaintiff and while they were fleeing from the plaintiff;' and 'that as a direct and proximate result of the joint and concurrent carelessness and negligence of the defendants' plaintiff incurred serious personal injuries.

The separate answers of defendants amounted to general denials together with allegations of plaintiff's contributory negligence, which plaintiff denied in separate replies filed thereto. The defendants thereupon moved for summary judgment.

Upon hearing of the motion defendants offered into evidence five photographs of various street intersections involved, a street diagram of the area and two depositions, taken as on cross-examination, of the plaintiff, Burgard, and his fellow officer Kubacki, who was also in the scout car at the time of the collision. No affidavits or depositions of either of the defendants were filed or offered into evidence by the defendants, and the plaintiff offered no opposing affidavits or depositions. As Officer Kubacki had also filed action against the defendants, with similar pleadings and similar motion by the defendants for summary judgment, by stipulation and with the approval and consent of the court the motions for summary judgment were heard together. By stipulations, stated by counsel for the defendants and agreed to by counsel for Burgard and Kubacki, the identical photographs, diagram and depositions were offered and admitted in both cases to be considered by the court in its disposition of both motions.

In this case, the Common Pleas Court found the motion well taken, without stating its reasons therefor, and entered judgment in favor of the defendants. The plaintiff's assignments of error were argued together and may be summarized that the judgment of the trial court is contrary to law.

At the outset of the hearing of this appeal counsel for defendants moved for dismissal or for the affirmance of the judgment of the trial court, for the claimed reason that no bill of exceptions was filed herein including as exhibits the photographs, diagram and depositions considered by the court, but that these exhibits were merely referred to in the stenographer's certificate to the bill of exceptions as being 'the exhibits attached to and included in cause number 193846, Kubacki v. Eff and Duncan, and made a part hereof by stipulation of counsel, and received in evidence by the court in this cause, No. 194824, and in cause number 193846,' etc., and that the record of the Kubacki case was not before this court. In disposing of this motion it might have been sufficient for us to conclude that this situation was brought about by the active suggestion and stipulation of counsel for the defendants of which conduct they cannot now complain. However, a complete reading of the bill of exceptions filed in this appeal demonstrates that the exhibits are definitely identifiable as those attached to the bill of exceptions prepared in the Kubacki case, which bill has been furnished to this court. Defense counsel's motion in this regard is without merit and is overruled.

In subparagraph (B) of our summary judgment statute, Section 2311.041, Revised Code, mandatory duties are imposed upon the trial court that:

'* * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions of the genuineness of papers or documents, and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A summary judgment shall not be rendered unless it appears from the pleadings, depositions, answers to interrogatories, admissions of the genuineness of papers or documents, and affidavits, if any, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made; the party against whom the motion for summary judgment is made is entitled to have such depositions, answers to interrogatories, admissions of the genuineness of papers or documents, and affidavits construed most strongly in his favor. * * *.' (Emphasis added.)

It is from such, and similar, statutory provisions that it is concluded in 49 C.J.S. Judgments § 225b, p. 418, that:

'On a motion by defendant for summary judgment dismissing the complaint, his affidavits must set forth evidentiary facts showing the sufficiency of his defense.'

See, also, Bowlds v. Smith, 114 Ohio App. 21, 180 N.E.2d 184; Oliver, Admr., v. Kasza, 116 Ohio App. 398, 188 N.E.2d 437; and Rukavina v. New York Central Rd. Co., 1 Ohio App.2d 48, 203 N.E.2d 495.

It is apparent from our summary judgment statute, and the foregoing authorities, that issues here having been joined on the negligence of the defendants and the contributory negligence of the plaintiff, the Common Pleas Court could not enter summary judgment for the defendants on their motion unless it could determine from the documents offered by the defendants at the hearing of such motion, as a matter of law, that one of three things existed, specifically, either (1) that the defendants were free of negligence, or (2) if defendants were negligent, that their negligence was not the proximate cause of plaintiff's injury, or (3) that the plaintiff was guilty of contributory negligence.

Without even construing the documents filed and offered by defendants most strongly in favor of the plaintiff they do not show that the defendants were, as a matter of law, free of negligence. On the contrary the depositions of plaintiff and Kubacki show that defendants were guilty of negligence per se in at least two respects, i. e., failing to obey a traffic control device, Section 4511.12, Revised Code, and failing to stop in obedience to a stop sign, Section 4511.43, Revised Code. They also tend to show that the defendants were negligent in the violation of statutory speed regulations, Section 4511.21, Revised Code, and tend to show conduct constituting a violation of Section 4511.78, Revised Code, prohibiting resistance of an official in attempting to arrest a traffic offender. As there were no affidavits of the defendants, or other documents filed by the defendants, showing otherwise, for the purpose of ruling on the motion the court had to accept these matters as undisputed and could not determine, as a matter of law, that defendants were free of...