Kellerman v. J. S. Durig Co., 38444

• Court: United States State Supreme Court of Ohio
• Writing for the Court: ZIMMERMAN; TAFT
• Citation: 199 N.E.2d 562,176 Ohio St. 320,27 O.O.2d 241
• Parties: , 27 O.O.2d 241 KELLERMAN, Admx., Appellant, v. The J. S. DURIG CO., Appellee.
• Docket Number: No. 38444,38444
• Decision Date: 03 June 1964

Page 320

176 Ohio St. 320 199 N.E.2d 562, 27 O.O.2d 241 KELLERMAN, Admx., Appellant,
v.
The J. S. DURIG CO., Appellee. No. 38444. Supreme Court of Ohio. June 3, 1964.

[199 N.E.2d 563] Syllabus by the Court

1. In the face of a motion to direct the jury to return a verdict for one of the parties to an action, the court must construe the evidence most strongly in favor of the party against whom the motion is made, and, where there is substantial competent evidence to support his side of the case, upon which reasonable minds might reach different conclusions, the motion should be denied.

2. Wanton misconduct charged against a defendant implies a disposition to perversity and a failure to exercise any care toward those to whom a duty of care was owing when the probability that harm would result from such failure was great and such probability was actually known, or in the circumstances ought to have been known, to the defendant.

3. Where wanton misconduct on the part of a defendant existed, negligence on the part of the plaintiff is not available as a defense.

4. A defendant-employer is liable for the wanton misconduct of his employee, where such misconduct was in the course of and within the scope of the employment, and whether such misconduct occurred in the course of and within the scope of the employment is usually a question of fact for the jury in a jury case.

5. If the evidence, construed most strongly in favor of the plaintiff, shows wanton misconduct, as that term has been defined, by defendant's employee in the course of and within the scope of his employment,[199 N.E.2d 564] such issue must be submitted to the jury under appropriate instructions.

Page 321

In her amended petition filed in the Court of Common Pleas of Trumbull County against The J. S. Durig Company, an Ohio corporation, plaintiff, as administratrix of the estate of Walter L. Kellerman, deceased, joined two causes of action, one for the recovery of damages for the alleged wrongful death of her decedent, who was also her husband, and the other for injuries to the person of the decedent, as authorized by Section 2309.05(K), Revised Code. Decedent suffered fatal injuries at about 5:55 p. m. on Thursday, January 5, 1961, when he drove his automobile, traveling in a westerly direction, into the left rear corner of a large tractor-trailer belonging to defendant and in charge of one of its employees, which had stopped on the north side of North River Road, a two-lane highway, with the left rear portion thereof extending onto the traveled portion of the road in the path of decedent's car.

Wanton misconduct as well as negligence on the part of defendant is charged. After certain formal admissions, the answer takes the form of a general denial.

Upon the trial of the action, at the close of plaintiff's evidence in chief, the court on motion directed a verdict for the defendant and rendered judgment accordingly. Such action was apparently predicated on the court's view that as a matter of law defendant was chargeable with no more than negligence under the holding of this court in Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843, 119 A.L.R. 646, and that plaintiff's decedent was chargeable with the violation of the assured-clear-distance-ahead statute (Section 4511.21, Revised Code), hence his conduct amounted to contributory negligence as a matter of law, and there could be no recovery under the holding in Smiley v. Arrow Spring Bed Co., 138 Ohio St. 81, 33 N.E.2d 3, 133 A.L.R. 960, and other like cases.

There was an appeal to the Court of Appeals on questions of law, and that court affirmed the judgment below without written opinion.

Allowance of a motion to require the Court of Appeals to certify the record brings the cause here for review.

Sindell, Sindell, Bourne & Markus, Cleveland, for appellant.

Guarnieri & Secrest and Charles A. Young, Warren, for appellee.

Page 322

ZIMMERMAN, Judge.

An established principle of law is that 'in the face of a motion to direct the jury to return a verdict for one of the parties to an action, which in effect is a demurrer to the evidence, the court must construe the evidence most strongly in favor of the party against whom the motion is made, and, where there is substantial competent evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court's determination in disposing of such a motion.' Durham v. Warner Elevator Mfg. Co., 166 Ohio St. 31,...