Duke v. Sanymetal Products Co.

• Decision Date: 03 August 1972
• Citation: 60 O.O.2d 171,286 N.E.2d 324,31 Ohio App.2d 78
• Parties: , 60 O.O.2d 171 DUKE, Appellant, v. SANYMETAL PRODUCTS CO., Inc., et al., Appellees.
• Court: Ohio Court of Appeals

Page 78

31 Ohio App.2d 78

286 N.E.2d 324, 60 O.O.2d 171

DUKE, Appellant, v. SANYMETAL PRODUCTS CO., Inc., et al., Appellees.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Aug. 3, 1972.

Syllabus by the Court

1. Summary judgment is a procedural device for terminating litigation which, if permitted to run its full course, would leave nothing for the trier of facts to resolve.

2. A court may be warranted in holding that a genuine issue of fact exists where competing reasonable inferences may be drawn from undiputed underlying evidence or where the facts presented are uncertain or indefinite. The resolution of such issue should be left to the trier of the facts.

3. A determination as to the existence of any master-servant or employer-independent contractor relationship will usually depend upon the facts and circumstances of each case.

4. Issues of credibility should be determined by the trier of the facts and are not properly within the province of a hearing on a motion for summary judgment.

Berger, Kirschenbaum & Lambros and Harvey Labovitz, Cleveland, for appellant.

James L. Malone, Cleveland, for appellee Sanymetal Products Co., Inc.

JACKSON, Judge:

This case comes here on appeal from a summary judgment decision entered by the Common Pleas Court against the plaintiff appellant, Solomon Duke, and in favor of one of the defendants, Sanymetal Products Company, Inc.

The appellant, Solomon Duke, sued Sanymetal Products Company, Inc. to recover damages caused by the alleged negligence of one of its employees, Robert Kotnik. Kotnik had delivered a shipment of Sanymetal merchandise to a customer, Keller-Silver Construction Corporation, for whom the appellant worked. The appellant was injured as he helped Kotnik unload the shipment.

The appellant's theory of recovery is respondeat superior. One of the essential material facts that he must establish is that Kotnik was acting at the time of the injury as a servant of appellee within the scope of his employment. Miller v. Metropolitan Life Insurance Co. (1938), 134 Ohio St. 289, 16 N.E.2d 447. As an affirmative defense, the appellee plead that Kotnik was acting in the capacity of an independent contractor at the time of the injury; thus, the respondeat superior doctrine theoretically would not apply. Id. at 291, 16 N.E.2d 447.

To sustain its position several officials of the appellee were deposed as to the dual capacity that Kotnik supposedly served at the company-that of an employee in the shipping department and that of an independent contractor hired to deliver goods to local customers. This deposition was filed with the appellee's motion for summary judgment. The trial court granted the motion and this appeal followed.

I.

The appellant claims two prejudicial assignments of error were committed by the trial court.

1. That defendant was not entitled to a summary judgment as a matter of law because there existed a genuine issue of material fact on which reasonable minds could differ.

2. That the court abused its discretion in granting defendant's motion for summary judgment.

Both assignments of error are well taken and will be considered and discussed together.

Summary judgment is a procedural device for terminating litigation which, if permitted to run its full course, would leave nothing for the trier of fact to resolve. As stated with stark simplicity in Rule 56(C), Rules of Civil Procedure, the scope of the court's inquiry at this stage is narrowly confined to whether there is any genuine issue of material fact. The court cannot try any issues of fact, except insofar as it is required to view the inferences to be drawn from the underlying facts in the light most favorable to the party opposing the motion. American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc. (2d Cir. 1967), 388 F.2d 272, 279.

It has been observed that there is no simple litmus test for determining whether a material issue of fact is presented. American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., supra. Obviously, one is presented where the relevant factual allegations in the pleadings, affidavits, depositions or interrogatories are in conflict. But even if the underlying evidence is undisputed, a court may nevertheless be warranted in holding that a genuine issue of fact is presented. It has been frequently held that 'the presence of competing reasonable inferences from undisputed facts presents a genuine issue of material fact whose resolution should be left to the trier of fact.' Franklin Nat'l Bank v. L. B. Meadows & Co. (E.D.N.Y. 1970), 318 F.Supp. 1339, 1344; see American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., supra; Washington Post Co. v. Keogh (1966), 125 U.S.App.D.C. 32, 365 F.2d 965, 967; S. J. Groves & Sons Co. v. Ohio Turnpike Comm'n (6th Cir. 1963), 315 F.2d 235, 237. A genuine issue might also arise where the facts presented in the moving papers are uncertain or indefinite; in other words, the picture that is painted in the moving papers either is clear, but incomplete, or is obscured by imprecise facts. Braniff v. Jackson Ave. Gretna Ferry, Inc. (5th Cir. 1960), 280 F.2d 523, 526-528.

II.

A vital material issue in this case and one on which the summary judgment motion focused is whether Albert Kotnik was acting in the capacity of a servant or as an independent contractor at the time of the mishap. For several reasons we believe the lower court erred in holding that there was no genuine issue as to Kotnik's employment status.

Although there are inherent dangers in making broad generalizations about the law, it is perhaps not too objectionable to say that one's legal status in relation to his employer most often turns on the facts and circumstances of each case. Magarian v. Southern Fruit Distrib. (1941), 146 Fla. 773, 1 So.2d 858. For the varieties of master-servant and employer-independent contractor relationships are as endless as man's imagination. Thus, there is no magic talisman for determining one's employment status. Appellee correctly notes that the basic test is whether the employer has the right of control over the...