Keesecker v. G.M. McKelvey Co., 2791.

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: STEVENS
• Citation: 68 Ohio App. 505,42 N.E.2d 223
• Parties: KEESECKER v. G. M. McKELVEY CO.
• Docket Number: No. 2791.,2791.
• Decision Date: 19 December 1941

68 Ohio App. 505
42 N.E.2d 223

KEESECKER
v.
G. M. McKELVEY CO.

No. 2791.

Court of Appeals of Ohio, Seventh District, Mahoning County.

Dec. 19, 1941.

Action by one Keesecker against the G. M. McKelvey Company for personal injuries. Judgment for plaintiff, and defendant appeals.-[Editorial Statement.]

Reversed, and entry of final judgment for defendant ordered.

[42 N.E.2d 224]

Syllabus by the Court.

A servant of the defendant, a merchant furnishing delivery service in the city, having a package to deliver to the home of a customer, stopped the delivery wagon near the residence of a household of which plaintiff was a member, and, owing to the condition of the marking on the package, the servant, being uncertain as to whether it should be delivered at that residence or the next one thereto, entered the premises where plaintiff lived and went upon the porch and made an alarm at the front door, in good faith believing that he had the right so to do, for the purpose of ascertaining whether said package was for the family living in said residence: Held, that, as a matter of law, said servant was not a trespasser; that, if he was not a business invitee, he was at least a licensee.

Manchester, Ford, Bennett & Powers, of Youngstown, for appellant.

Clyde W. Osborne, of Youngstown, for appellee.

STEVENS, Judge.

This is an appeal on questions of law from a verdict and judgment in favor of plaintiff (appellee) because of personal injuries allegedly sustained by her.

The action has an extensive and unusual legal history. It was first tried upon a petition which charged the defendant with trespass and negligence. The trial court in that trial withdrew the issue of trespass from the consideration of the jury, and submitted the case to the jury upon the question of defendant's negligence. A verdict

[42 N.E.2d 225]

and judgment for plaintiff ensued, which was reversed by the Court of Appeals for the Seventh District upon the ground that, as a matter of law, defendant was not liable for negligence under the facts disclosed by the record because the injuries to plaintiff could not have been foreseen or reasonably anticipated, and there was thus no evidence of negligence upon the part of defendant's agent. The cause was thereupon remanded to the trial court for retrial. See G. M. McKelvey Co. v. Keesecker, 23 O.L.A. 353.

During the second trial in the Court of Common Pleas, an amended petition was filed by plaintiff, in which the cause of action for negligence was omitted and an action for trespass alone pleaded. Submission of the case to that jury upon the issue of trespass resulted in a verdict and judgment for the defendant. Upon appeal, a visition Court of Appeals reversed that judgment upon the ground that defendant's agent was a trespasser as a matter of law, and, some injury to plaintiff being conceded, the verdict and judgment for defendant were manifestly against the weight of the evidence, The case was again remanded for retrial. See Keesecker v. G. M. McKelvey Co., 64 Ohio App. 29, 27 N.E.2d 787.

In the third trial, upon the same pleadings as were present in the second trial, the case was submitted to the jury upon the instruction that defendant was a trespasser as a matter of law, and that the only issues for consideration of the jury were those of proximate cause and damages. That jury returned a verdict for plaintiff upon which judgment was entered.

The facts are briefly these:

Plaintiff, at the time of the filing of the first petition herein, was a child approximately five and one-half years of age, living with her parents in their residence at 356 Crandall Avenue, Youngstown, Ohio, they being in possession of the premises as tenants. Across the front of that residence was a glass-enclosed, unheated porch, with a set of steps leading from the driveway to said porch; and unlocked porch door provided entrance thereto. Some 18 feet from said porch door was the door providing the main entrance to the house proper.

The plaintiff, born in December, 1927, had been, from the time of birth up to the time she was approximately four and one-half years of age, a child who showed no mental development. Her condition was such that she could neither move nor talk, had no control of her limbs, ground her teeth, attempted to tear off her clothes, and made no response to auditory or ocular stimuli.

At the time said child was approximately four and one-half years of age, she was taken to the Cleveland Clinic at Cleveland, Ohio, for examination by Dr. Gardner, an eminent neurological surgeon. He described her condition at that time as above indicated. Dr. Gardner recommended the taking of an X-ray picture of the brain, described as an encephalograph. The taking of such a picture is accomplished by the removal of spinal fluid from the spinal canal and the introduction of air therein. Through the medium of the encephalograph, a brain lesion was demonstrated and an operation advised.

On June 8, 1932, Dr. Gardner operated on the plaintiff, made a skull flap, and upon incising the brain discovered a mass apparently one to one and one-half inches in diameter extending into the brain for an unknown distance and firmly adhering to the brain tissue on the right side of the brain. Concluding it to be nonfeasible to attempt the removal of said mass, the brain covering was closed and sutured, the bone of the skull replaced leaving a window therein, and the scalp sutured. After that operation, a normal recovery from the operation apparently ensued. During the following ten months the child's condition improved to the extent that it may be said the evidence shows she was able to move about, to express a very few simple words, to make the calls of nature known, and to some degree feed herself. The child was permitted to occupy the front porch hereinbefore described.

On May 29, 1933, a truck belonging to the defendant company stopped in front of the residence of plaintiff for the purpose of delivering two packages. There were two men on this truck, the driver and a helper. Due to some confusion in the addresses on said packages, the helper, under the bona fide impression that one of the packages was to be delivered to plaintiff's residence, walked up the driveway leading thereto, went up the steps, through the door leading onto the porch, and over to the door providing the main entrance to the house. As he came onto the porch, he saw the plaintiff, who, at that time, was looking out of the window. The condition of the plaintiff was not such

[42 N.E.2d 226]

as to excite inquiry on the part...