McDougall v. Glenn Cartage Co., 35799

• Decision Date: 15 July 1959
• Docket Number: No. 35799,35799
• Citation: 160 N.E.2d 266,169 Ohio St. 522
• Parties: , 9 O.O.2d 12 McDOUGALL, Appellant, v. GLENN CARTAGE CO., Appellee.
• Court: Ohio Supreme Court

Page 522

169 Ohio St. 522

160 N.E.2d 266, 9 O.O.2d 12

McDOUGALL, Appellant, v. GLENN CARTAGE CO., Appellee.

No. 35799.

Supreme Court of Ohio.

July 15, 1959.

Syllabus by the Court

1. The general rule is that in the trial of causes matters of evidence and the inferences to be drawn therefrom relate to the remedy and not to the right, and the law of the forum governs such matters.

2. The only inferences of fact which the law recognizes are immediate inferences from facts proved, but a given state of facts may give rise to two or more inferences, and in such case one inference is not built upon another but each is drawn separately from the same facts.

3. Where a commercial motor truck, bearing the name and distinctive markings of a certificated transportaion company engaged in the common carrigae of goods, with a list under such name of ICC and PUCO permits and numbers, is being operated on a highway it is authorized to use and collides with another vehicle, a rebuttable presumption or an inference arises not only that such truck belonged to the one whose name and markings it carried but also that it was being operated on his business at the time of the collision. Sobolovitz v. Lubric Oil Co., 107 Ohio St. 204, 140 N.E. 634, overruled so far as it conflicts with the above statement.

This action was instituted in the Court of Common Pleas of Cuyahoga County by Raymond McDougall against The Glenn Cartage Company, an Ohio corporation and a certificated common carrier of goods by motor truck, to recover damages for personal injuries received by McDougall through the claimed negligence of Glenn. In its answer, Glenn, on the basis of lack of knowledge, denies generally the material allegations of the petition.

On the trial of the action, the plaintiff's evidence showed that on the early morning of October 29, 1952, while it was still dark, he was operating a tractor-trailer unit in an easterly direction on U. S. Route No. 5, a few miles west of Dunkirk, New York. As plaintiff rounded a curve he observed the lights of a motor truck approaching at hig speed and being driven partially on plaintiff's side of the road. To avoid a collision plaintiff swerved to the right, but the other vehicle 'sideswiped' his conveyance, and plaintiff's truck ran off the road and into a field. He was thrown through the windshield and pinned beneath the trailer of his unit, whereby he sustained painful injuries. The other vehicle continued on its way and vanished in the darkness.

To establish the identity of the offending motor truck, plaintiff introduced the testimony of another truck driver. This witness testified that he was driving west on U. S. Route No. 5 and stopped his motor truck at a restaurant in Dunkirk and there observed two Glenn Cartage Company trucks parked outside, which he identified as such, describing the Glenn insignia and markings on the sides of the doors of the cabs with ICC and PUCO permits and numbers. One of these trucks left immediately, but the other followed the witness out of Dunkirk and passed him at an estimated speed of from 55 to 60 miles an hour shortly before the collision involved herein. As the truck passed he noted the Glenn name and markings. According to this witness, the truck was some three feet to the left of the center line of the road after it went by, and its driver attempted to avoid plaintiff's oncoming vehicle but 'sideswiped the side of this [plaintiff's] trailer.'

At the close of plaintiff's evidence in chief, the trial court sustained the defendant's motion for a directed verdict, on authority of Sobolovitz v. Lubric Oil Co., 1923, 107 Ohio St. 204, 140 N.E. 634, and entered judgment for the defendant.

On an appeal on questions of law, the Court of Appeals affirmed the judgment, and the cause is now here for decision on its merits on an appeal as of right and by reason of the allowance of a motion to certify the record.

Baker, Hostetler & Patterson, Charles D. Johnson, Robert G. Stinchcomb and George N. Plavac, Cleveland, for appellant.

McConnell, Blackmore, Cory & Burke, S. Burns Weston and Mark O'Neill, Cleveland, for appellee.

ZIMMERMAN, Judge.

It is the general rule in Ohio and elsewhere that in the trial of causes matters of evidence and the inferences to be drawn therefrom relate to the remedy and not to the right, and, consequently, the law of the forum governs such matters. 9 Ohio Jurisprudence (2d), 829, 830, Sections 114, 115; 11 American Jurisprudence, 521, Section 203; 15 C.J.S. Conflict of Laws § 22, p. 955; and Restatement of the Law of Conflict of Laws, 710, Section 595. We can discover no good reason why such rule should not apply in the instant case.

Under the evidence produced by plaintiff, did he make a prima facie case against defendant requiring the latter to go forward with its evidence?

Some cases hold that proof of the ownership of a vehicle raises a rebuttable presumption or an inference that the driver of the vehicle at a particular time was the owner's agent and acting for him. 5 American Jurisprudence 869, Section 662. Other cases hold that mere proof of ownership of a pleasure vehicle does not create a presumption or raise an inference that the person driving it at the time of an injury was the owner's agent acting for him; but as to commercial vehicles the rule is different because ordinarily the use of such type of vehicle is in the owner's business. 5 American Jurisprudence 871, Section 664.

However, Ohio is firmly committed to the rule that mere proof of the ownership of an instrumentality is not enough to permit an inference that the one operating it at a given time was the owner's employee or agent acting for or on behalf of his employer or principal. White Oak Coal Co. v. Rivoux, 88 Ohio St. 18, 102 N.E. 302, 46 L.R.A.,N.S., 1091, Ann Cas.1914C, 1082; Bretzfelder v. Demaree, 102 Ohio St. 105, 130 N.E. 505; Halkias v. Wilkoff Co., 141 Ohio St. 139, 47 N.E.2d 199; Jackson v. Frederick, 152 Ohio St. 423, 89 N.E.2d 645; and Gulla v. Straus, 164 Ohio St. 193, 93 N.E.2d 662.

This brings us to the case of Sobolovitz v. Lubric Oil Co., supra (107 Ohio St. 204, 140 N.E. 634). There, plaintiff was injured by a moving motor truck which did not belong to a certificated carrier. One witness testified he saw the words, 'The Lubric,' inscribed on the truck. It was held that, although such evidence would support the inference that defendant owned the truck (annotation, 27 A.L.R. [2d], 167), it would not warrant the further inference that the truck was being driven, when the injury occurred, by an employee of the defendant on defendant's business. That holding accounts for the second paragraph of the syllabus in the Sobolovitz case, which reads:

'An inference of fact cannot be predicated upon another inference, but must be predicated upon a fact supported by evidence.'

The phrase, 'basing an inference upon an inference,' is frequently misunderstood and improperly applied. In the case of Gero v. John Hancock Mutual Life Ins. Co., 111 Vt. 462, 480, 18 A.2d 154, 163, it is said:

'The only inferences of fact which the law recognizes are immediate inferences from the facts proved. * * * But a given state of facts proven to the satisfaction of the jury may give rise to two or even more separate inferences, and in such a case one inference is not built upon the other, each is drawn independently from the same evidence.'

See Hozian v. Crucible Steel Casting Co., 132 Ohio St. 453, 9 N.E.2d 143, 112 A.L.R. 333, and Hurt v. Charles J. Rogers Transportation Co., 164 Ohio St. 329, 130 N.E.2d 820, in which latter case parallel inferences and their validity are discussed. It is of course basic that an inference can not be predicated upon a fact the existence of which rests on another inference. For example, if a seasick passenger on a ship in mid-ocean was last seen standing by the rail and he then disappeared completely, the inference may properly be drawn that he fell overboard and was drowned, but the additional inference that he intentionally jumped overboard and committed suicide can not be indulged. However, if it is shown that the passenger was in desperate financial and domestic trouble, was visibly depressed and had on several occasions threatened to do away with himself, then from such facts the inference can be drawn that he deliberately threw himself overboard and committed suicide. Again, if a pedestrian was observed walking along a road and he was found unconscious and injured at the side of the road immediately after the passing of an automobile, it may logically be inferred that such automobile struck him, but it can not be inferred further that the driver of the car was negligent.

By the decided weight of authority, it is established that, where a commercial vehicle travelling on a highway bears the name of a person, a rebuttable presumption or an inference arises not only that such person owns it but that it is being operated in his business. 9B Blashfield, Cyclopedia of Automobile Law and Practice (Perm.Ed.), 525, Section 6056; Callas v. Independent Taxi Owners' Ass'n, Inc., 62 App. D.C. 212, 66 F.2d 192 (certiorari denied, 290 U.S. 669, 54 S.Ct. 89, 78 L.Ed. 578); Barber Pure Milk Co. v. Holmes, 264 Ala. 45, 84 So.2d 345; Howell v. J. Mandelbaum & Sons, 160 Iowa 119, 140 N.W. 397, Ann.Cas.1915D, 349; Capozi v. Hearst Publishing Co., Inc., 371 Pa. 503, 92 A.2d 177; Fullerton v. Motor Express, Inc., 375 Pa. 173, 100 A.2d 73; Walker v. Johnston, Tex.Civ.App., 236 S.W.2d 534 (writ of error denied by Supreme Court); and Capello's v. Aero Mayflower Transit Co., 116 Vt. 64, 68...