Hamlin v. McAlpin Co.

• Decision Date: 04 March 1964
• Docket Number: No. 37754,37754
• Citation: 175 Ohio St. 517,26 O.O.2d 206,196 N.E.2d 781
• Court: Ohio Supreme Court
• Parties: , 26 O.O.2d 206 HAMLIN, Appellant, v. The McALPIN CO., Husmann & Roper Freight Lines, Inc., Appellee.

Page 517

175 Ohio St. 517

196 N.E.2d 781, 26 O.O.2d 206

HAMLIN, Appellant, v. The McALPIN CO., Husmann & Roper Freight Lines, Inc., Appellee.

No. 37754.

Supreme Court of Ohio.

March 4, 1964.

Syllabus by the Court

1. Where the trial court had jurisdiction of the subject matter of an action and jurisdiction of the parties thereto, this court will not consider or determine claimed errors which were not raised in either the trial court or in the Court of Appeals. (Paragraph three of the syllabus in the case of State ex rel. Babcock v. Perkins et al., Stark County Board of Elections, 165 Ohio St. 185, 134 N.E.2d 839, approved and followed.)

2. On motion for summary judgment, the burden of establishing that the material facts are not in dispute and that no genuine issue of facts exists is on the party moving for the summary judgment.

3. Where a truck driver parks his truck at the rear entrance to a store and waits while part of the freight is unloaded and then, upon instructions from an employee of the store or an employee of the contractor engaged in remodeling the store, drives his truck to the front entrance of the store for the purpose of unloading the remaining aprt of the freight, and where during such trip the plaintiff, an employee of the contractor engaged in remodeling the store, riding in the rear of the truck for the purpose of holding the freight in place, is struck by a piece of the freight and thrown from the truck and injured, the driver's employer, the truck owner, is not entitled to a summary judgment permitting him to escape liability for the driver's alleged negligence which is alleged to have caused the plaintiff's injury, on the ground that, as a matter of law, the driver was a 'loaned servant' of the store owner of the contractor remodeling the store.

The plaintiff instituted suit to recover for personal injuries sustained when he was thrown from a truck while assisting in the unloading of a cargo that was being delivered to The McAlpin Company department store, in a tractor-trailer unit owned by the Husmann & Roper Freight Lines, Inc., and driven by one of its employees. Husmann & Roper, the trucking company, herein called defendant, filed an answer and then a motion for summary judgment, setting up as its grounds that it was not guilty of negligence, and that the truck driver was outside the scope of his employment at the time of the injury.

The trial court overruled the motion for summary judgment so far as it was predicated upon a lack of negligence. However, the trial court found for the defendant and sustained the motion for summary judgment, on the ground that the driver of defendant's truck was outside 'the scope of his employment.'

The sole evidence offered as to this motion consisted of the truck driver's affidavit and the deposition of the plaintiff taken on cross-examination by the defendant. Neither the affidavit nor the record of the cross-examination contains any reference to any limitation of the scope of the truck driver's employment.

The plaintiff appealed to the Court of Appeals, and that court affirmed the judgment of the trial court on the ground, stated in its opinion, that the truck driver was a loaned servant. The opinion of the Court of Appeals does not refer in any manner to the issue of 'the scope of employment.'

The cause is before this court upon the allowance of appellant's motion to certify the record.

Hoover, Beall & Eichel, Cincinnati, for appellant.

McIntosh & McIntosh, Cincinnati, for appellee.

O'NEILL, Judge.

The plaintiff urges three grounds for his position that the judgment of the Court of Appeals should be reversed.

The first ground is that a motion for summary judgment may not be entertained as to a case that was pending prior to the effective date of the summary-judgment statute (Section 2311.041, Revised Code). The summary-judgment statute became effective on November 9, 1959. This cause was instituted on July 23, 1959.

The plaintiff, however, did not raise this issue in the trial court or in the Court of Appeals. In fact, the first time this issue was raised by the plaintiff was in his reply brief in support of his motion to certify the record in this cause.

The trial court and the Court of Appeals had jurisdiction of the subject matter of this action and the parties thereto, and under these circumstances this court will not consider or determine claimed errors which were not raised in either the trial court or in the Court of Appeals. (Paragraph three of the syllabus in the case of State, ex rel. Babcock v. Perkins et al., Stark County Board of Elections, 165 Ohio St. 185, 134 N.E.2d 839, approved and followed.)

The second ground upon which this appeal is predicated is that, although the court allowed the motion for summary judgment upon the theory that the defendant's agent was 'outside the scope of his employment,' there is no evidence of any...