Keesecker v. G.M. McKelvey Co., No. 29052.

• Court: Ohio Supreme Court
• Writing for the Court: ZIMMERMAN
• Citation: 141 Ohio St. 162,47 N.E.2d 211
• Docket Number: No. 29052.
• Decision Date: 24 February 1943
• Parties: KEESECKER v. G. M. McKELVEY CO.

141 Ohio St. 162
47 N.E.2d 211

KEESECKER
v.
G. M. McKELVEY CO.

No. 29052.

Supreme Court of Ohio.

Feb. 24, 1943.

WILLIAMS, J., dissenting in part.

Certified by Court of Appeals, Mahoning County.

Action by one Keesecker, a minor, against the G. M. McKelvey Company for personal injuries. Judgment for plaintiff was reversed by the Court of Appeals, 68 Ohio App. 505, 42 N.E.2d 223, and final judgment for defendant was ordered to be entered, and the record was certified to the Supreme Court for review and final determination. [Editorial Statement].

Reversed.

[47 N.E.2d 212]

Syllabus by the Court

1. In an action grounded on trespass, brought to recover damages for personal injuries, in which the uncontradicted evidence discloses circumstances from which different minds might reasonably draw different conclusions as to whether the one charged with trespass was a trespasser or licensee, that question becomes one for the jury under instructions from the court.

2. A case coming from a Court of Appeals to the Supreme Court on its merits is present for determination on all questions presented by the record, but only the particular order or judgment appealed from, or which is immediately involved upon a certification of the record, may properly be reviewed.

3. The overruling of a motion to require a Court of Appeals to certify its record in a case does not constitute an affirmance of the judgment of such court.

This case has had a tortuous history. It has been thrice tried in the Court of Common Pleas, thrice reviewed by the Court of Appeals, and has been twice before the Supreme Court on motions for certification.

On the afternoon of May 29, 1933, the plaintiff, Mary Louise Keesecker, a mentally deficient child, but normal in appearance, then approximately five and one-half years old, was standing in the enclosed porch, also referred to as a sunroom or solarium, extending across the entire front of the frame dwelling occupied by her parents and herself in the city of Youngstown, Ohio. Her mother had left her for a short time to go into the house on an errand.

This porch, which was unheated, had numerous glass windows and, according to the positive testimony in the case, was furnished with several wicker chairs, a wicker settee, a floor covering and other articles. From the adjacent cement driveway several steps led up to a wood and glass door at one end of the porch. There was another door, a number of feet away, leading directly from the porch into the living room of the house, beside which was a push button type doorbell.

At about four o clock on the afternoon in question, a delivery truck of the defendant, The G. M. McKelvey Company, a Youngstown department store, stopped in front of the Keesecker home, and the deliveryman, who was accompanying the driver, proceeded up the Keesecker drive with a package which he thought was for the Keeseckers but which was in fact for a neighboring

[47 N.E.2d 213]

family. The deliveryman entered through the porch door, went to the other door, pushed the button without result and then knocked, these activities consuming a period of two or three minutes. On the last trial of the action, he did not remember whether the porch door was closed or the porch furnished. Positive testimony was to the effect that the door was closed.

While the deliveryman was at the door leading into the living room, plaintiff fell out through the porch doorway, down the steps and onto the cement driveway, sustaining injuries the nature and extent of which were a matter of dispute in the litigation which followed. Plaintiff offered evidence tending to show that the fall destroyed the mental and physical improvement claimed to have been noted after a head operation, while the defendant's evidence tended to show that the injuries resulting from the fall were relatively slight and superficial.

In October of 1933, plaintiff began an action against the McKelvey company, claiming damages for personal injuries on account of the fall. The petition was grounded upon negligence and trespass. In submitting the case to the jury, the trial court eliminated the element of trespass and charged only on negligence. A verdict was returned for plaintiff in the sum of $13,000, and judgment entered thereon.

On appeal, the Court of Appeals reversed, 23 O.L.A. 353, holding there was no negligence as a matter of law, because it could not reasonably have been anticipated by the defendant's employee that an apparently normal child of the age of plaintiff would go to the doorway and fall down the steps. The cause was ‘remanded to the Court of Common Pleas, to submit the issue of trespass to a jury, and whether such trespass was a direct and proximate cause of the injuries and damages, if any of which plaintiff complains and if so the amount of that damage.’ A motion to certify, filed by the plaintiff, was overruled by this court.

Thereupon, plaintiff voluntarily amended her petition to conform with the judgment of the Court of Appeals, by removing negligence. The second trial of the cause on the sole issue of trespass resulted in a verdict and judgment for the defendant. The plaintiff then appealed to the Court of Appeals, and the matter was heard by one judge of the First Appellate District and two judges of the Fifth Appellate District, sitting in the Seventh Appellate District by designation. That court took the position that the trial court ‘should have instructed the jury as a matter of law that the employee of the defendant, when he opened the door of the sunroom and proceeded across such room was a trespasser,’ and ‘if the jury's verdict was predicated upon a conclusion that the injuries to plaintiff were not proximately caused by the trespass of the defendant's employee, then we consider their verdict manifestly against the weight of the evidence.’ The judgment below was reversed and the cause remanded for further proceedings. Keesecker, an Infant, v. G. M. McKelvey Co., 64 Ohio App. 29, 27 N.E.2d 787. A motion for certification prosecuted by defendant was overruled by this court.

A third trial was then had in the Court of Common Pleas of Mahoning county in conformity with the above views of the Court of Appeals, and the plaintiff secured a verdict and judgment for $17,500. Defendant's appeal to the Court of Appeals was considered by the judges of the Ninth Appellate District. Such court ‘being unanimously of the opinion that, under this record, the defendant's agent, as a matter of law, was not a trespasser [but an implied licensee], and the action being predicated solely upon a claim of trespass, it follows that no right of recovery of damages for trespass exists in the plaintiff.

‘Accordingly, the judgment for plaintiff is reversed; and this court, now proceeding to render the judgment which the trial court should have entered, orders that final judgment for defendant be entered * * *.’ 68 Ohio App. 505, 42 N.E.2d 223, 228.

The judges of the Court of Appeals of the Ninth Appellate District finding such judgment in conflict with the judgment rendered by the Court of Appeals which heard the case the second time, certified the record to the Supreme Court for review and final determination.

Clyde W. Osborne, of Youngstown, for appellant.

Manchester, Ford, Bennett & Powers and M. S. Wilkison, all of Youngstown, for appellee.

ZIMMERMAN, Judge.

Since this cause is now here on its merits, the first and most important question engaging our attention is whether the defendant's

[47 N.E.2d 214]

employee was a licensee or trespasser as a matter of law, or whether his status is a mixed question of law and fact and should be left to the determination of a jury under instructions from the court.

A ‘trespasser’ may be defined as one who unauthorizedly goes upon the private premises of another without invitation or inducement, express or implied,...