Moore v. Workman

• Decision Date: 17 August 1971
• Citation: 277 N.E.2d 445,28 Ohio App.2d 303
• Parties: , 57 O.O.2d 474 MOORE et al., Appellees, v. WORKMAN, Appellant, et al.
• Court: Ohio Court of Appeals

Page 303

28 Ohio App.2d 303

277 N.E.2d 445, 57 O.O.2d 474

MOORE et al., Appellees, v. WORKMAN, Appellant, et al.

Court of Appeals of Ohio, Tenth District, Franklin County.

Aug. 17, 1971.

Syllabus by the Court

1. In an action for damages to a motor vehicle resulting from an accident, plaintiff's ownership of the automobile must be established either through a certificate of title or by way of admission in the pleadings or by stipulation.

2. In such an action, where the drivers of both vehicles were proceeding along a collision course upon intersecting public thoroughfares, and there is no evidence as to the nature or type of public way traveled by each driver, the right of way at the intersection is controlled by R.C. § 4511.41.

3. In such case, it is prejudicial error for the court to find, as a matter of fact, that one of the thoroughfares was an alley, there being no evidence of record to support such finding.

John E. Palcich, Columbus, for appellees.

Griffith, Elliott, Donahue & Smith and Richard K. Elliott, Columbus, for defendant Harvey Workman.

R. Patrick West, Columbus, for defendant Motors Ins. Corp.

Crabbe, Newlon, Potts, Schmidt, Brown & Jones, Columbus, and Theodore D. Sawyer, Columbus, of counsel, for defendant Buckeye Union Ins. Co.

HOLMES, Judge.

This matter involves an appeal of a judgment for the plaintiffs in the Franklin County Municipal Court, awarding damages in a negligence action growing out of an automobile accident between automobiles operated by David L. Moore, hereinafter referred to as plaintiff, and Harvey Workman, hereinafter referred to as defendant.

The accident took place at the intersection of Pearl Street and Barthman Avenue in the city of Columbus. The defendant was traveling south on Pearl and the plaintiff was traveling west on Barthman.

The defendant stated that he had been waved through the intersection by the driver of another car which had stopped at the intersection, which car was headed in a westerly direction on Barthman.

The plaintiff stated that there was no other auto stopped at the intersection of Barthman and Pearl, and that he saw the defendant coming out of Pearl; that Barthman was clear from Fourth Street to High Street; that the defendant proceeded on into the intersection; and that he, the plaintiff, was unable to avoid hitting the defendant.

The trial court, sitting as a trier of the facts, after submitting its findings of fact and conclusions of law, rendered judgment for the plaintiff in the amount of $2,000 and dismissed the defendant's cross-petition.

The trial court included within its findings of fact that Pearl, at the point of intersection with Barthman, was an 'alley.' Further, in the court's conclusions of law it found that the plaintiff was not negligent; that the defendant was negligent; and that the damage was the direct and proximate result of the defendant's negligence. The court indicated further that such negligence was predicated upon the application of R.C. §§ 4511.44 and 4511.01. However, the court did not set forth which subsection of the latter section it was construing.

The defendant's first assignment of error is: 'The trial court erred in allowing damages for the appellee's automobile without proof of title.'

It appears from the record that there was a stipulation as to the defendant's ownership of his automobile but there was no such stipulation with reference to the plaintiff's automobile, nor does there appear to be any admission in the pleadings as to the ownership of the plaintiff's automobile.

The section of law applicable to this assignment of error is R.C. § 4505.04, which, in pertinent part, is as follows:

'No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle sold or disposed of, or mortgaged or encumbered, unless evidenced:

'(A) By a certificate of title or a manufacturer's or importer's certificate issued in accordance with sections 4505.01 to 4505.19, inclusive, of the Revised Code.

'(B) By admission in the pleadings or stipulation of the parties.'

This court discussed that section in the case of Mayflower Ins. Co. v. Ridinger (1960), 112 Ohio App. 502, 171 N.E.2d 525. The court set forth the law of the matter in paragraph one of the syllabus, as follows:

'In a negligence action to recover for damages to an automobile involved in a collision of motor vehicles, the plaintiff is obliged to conform to Section 4505.04, Revised Code, by proving the ownership of his automobile, but he is not obliged to prove ownership of the automobile operated by the defendant.'

The same holding of law was set forth in Selective Ins. Co. v. Reinhardt (1962), 115 Ohio App. 561, in paragraph one of the syllabus, 183 N.E.2d 255, as follows:

'1. In an action for damages to a motor vehicle resulting from an accident, plaintiff's ownership of the vehicle must be established in accordance with the requirements of Section 4505.04, Revised Code, the 'evidence of ownership' statute.'

It might be arguable that since the defendant did not raise the question of title to plaintiff's automobile at the time of the trial, such issue is not timely at this junciture. This may be so, particularly where the defendant refers to the auto of the plaintiff in his testimony and in his answers to the plaintiff's interrogatories. However, we think it a better...