Gee v. Horvath, 35725

• Decision Date: 18 March 1959
• Docket Number: No. 35725,35725
• Citation: 7 O.O.2d 484,157 N.E.2d 354,169 Ohio St. 14
• Parties: , 7 O.O.2d 484 GEE, Appellant, v. HORVATH, Appellee.
• Court: Ohio Supreme Court

Page 14

169 Ohio St. 14

157 N.E.2d 354, 7 O.O.2d 484

GEE, Appellant, v. HORVATH, Appellee.

No. 35725.

Supreme Court of Ohio.

March 18, 1959.

Syllabus by the Court

Under the workmen's compensation law of Ohio, an employee who has been injured and has received an award therefor from the Industrial Commission is not thereby precluded from maintaining an action against a fellow employee for damages for such injuries suffered as a proximate result of negligence on the part of such fellow employee. (Paragraph two of the syllabus in the case of Morrow v. Hume, 131 Ohio St. 319, 3 N.E.2d 39, approved and followed; Landrum v. Middaugh, 117 Ohio St. 608, 160 N.E. 691, overruled.)

In the Court of Common Pleas the plaintiff Gee instituted this action to recover damages for injuries suffered to his person on March 16, 1951, as a result of negligence on the part of the defendant Horvath who was a fellow employee of the plaintiff in the factory of the Willys-Overland, Incorporated, in Toledo, Ohio.

In his petition the plaintiff alleged that while he was seated and eating his lunch the defendant was engaged in operating an electric motor vehicle also known as a 'mule.' Due to the alleged negligence of the defendant, the plaintiff was struck by the vehicle and injured seriously.

In his answer the defendant alleged that the plaintiff has asked and received an award of compensation from the Industrial Commission of Ohio for the disability resulting from his injuries and that this award constituted a waiver of any right of recovery from the defendant.

To this defense the plaintiff filed a demurrer which the trial court overruled, and a judgment was rendered in favor of the defendant.

On an appeal to the Court of Appeals on questions of law, the judgment of the Court of Common Pleas was affirmed.

The Court of Appeals then certified the cause to this court for review and final determination on the ground that the judgment of that court is in conflict with a judgment pronounced on the same question by the Court of Appeals of the Eighth Appellate District of Ohio in the case of Ellis v. Garwood, 143 N.E.2d 715.

William T. Burgess, John J. Callahan and Arthur H. Katz, Toledo, for appellant.

Boxell, Bebout, Torbet & Potter, Toledo, and Charles E. Brown, for appellee.

WEYGANDT, Chief Justice.

Counsel have waived oral argument apparently for the reason that they consider the recent decision of this court in the above-mentioned Ellis case, 168 Ohio St. 241, 152 N.E.2d 100, as controlling in the instant case. This recent decision is discussed in the brief of the plaintiff but is not mentioned in the brief of the defendant.

The decisions of this court receiving the most attention of both counsel in their briefs are those in the cases of Landrum v. Middaugh, 117 Ohio St. 608, 160 N.E. 691, and Morrow v. Hume, 131 Ohio St. 319, 3 N.E.2d 39, 42. They are discussed and distinguished in the opinion in the Ellis case, supra.

In the Landrum case the plaintiff was not permitted to recover from his foreman after having been awarded compensation by the Industrial Commission. In the later Morrow case, recovery was allowed. In his opinion in the latter case, Williams, J., attempted to distinguish the two cases in the following comment:

'This court is driven to the conclusion that this case may be distinguished from Landrum v. Middaugh, supra. In that case a board had been caught by a conveyor and by it carried into a dry pan, thereby obstructing and interfering with the free operation of the machinery. The defendant, who was the foreman of the company operating the plant, directed the 'plaintiff together with a fellow worker to assist him' in taking the board from its lodgment. As the plaintiff, in obeying the order, reached his left arm into and under the dry pan to get the board, the defendant foreman, without notice or warning, started the machinery thereby crushing plaintiff's arm. It thus appears that the foreman was the alter ego of the employer in the operation of the employer's machinery.

'In the instant case, the defendant was in a different position in that he was operating and controlling his own automobile. The defendant did owe a duty to the decedent and may be held to respond in damages for the wrongful death based on his negligence provided all elements warranting recovery are present.'

However, a majority of the present members of the court are of the opinion that the attempted distinction between the two cases is not sound.

In his opinion in the Ellis case [168 Ohio St. 241, 152 N.E.2d 103], Matthias, J., expressed the following conclusion:

'Thus, the Morrow case established the principle that employees of Ohio employers or the dependents of such employees are not precluded from recovering for injury or death merely because the alleged tort-feasor happened to be a co-employee; and Section 4123.54, enacted subsequent to the Morrow case, did not disturb that principle since it did not establish immunity for nonresident co-employees. In other words, the immunity from suit by injured employees which is granted an employer by the Ohio Workmen's Compensation Act does not necessarily extend to co-employees, whether resident or nonresident.

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'Thus, by the statutes of this state relating to workmen's compensation and the decision of this court in the case of Morrow v. Hume, supra, an employee or his dependents, whether resident or nonresident, are not precluded from recovering damages from a co-employee for injuries or death, merely because of their receipt of benefits under a workmen's compensation law; and, by the statutes above, such an employee, whether resident or nonresident, may maintain an action against his co-employee in Ohio where the injury resulted from the operation of a motor vehicle in this state by such co-employee.'

Subsequently, however, the following caveat appears in the opinion:

'It is here noted that this decision relates only to a demurrer to an answer. In keeping with the general policy of this court to...