Sobolovitz v. Lubric Oil Co.
| Citation | 107 Ohio St. 204,140 N.E. 634 |
| Decision Date | 06 March 1923 |
| Docket Number | 17555 |
| Parties | Sobolovitz v. The Lubric Oil Co. |
| Court | United States State Supreme Court of Ohio |
Negligence - Proof to sustain liability - Evidence upon essential elements - Predicating one inference upon another - Ownership and operation of motor truck - Duty to direct verdict when.
1. To entitle the plaintiff in a personal injury suit to have his case submitted to a jury, it is necessary that he produce some evidence upon every element essential to create liability, or produce evidence of a fact upon which a reasonable inference may be predicated to support such element.
2. An inference of fact cannot be predicated upon another inference, but must be predicated upon a fact supported by evidence.
3. Where the plaintiff fails to produce any evidence upon an essential element of his case and no reasonable inference can be drawn from a fact supported by evidence which would tend to prove such element, it is error for the court to submit the case to a jury.
- On Sunday morning, the 16th day of June, 1918, the plaintiff below, Milton Sobolovitz, had his left foot crushed by an automobile truck, and on the 25th day of June, 1919, he filed his petition against the defendant below, The Lubric Oil Company, alleging that the defendant was the owner of the truck which caused the injury and that it was being operated at the time in a negligent manner by an employe of the defendant in the furtherance of the defendant's business.
The defendant answered denying that any truck owned by it, or operated in the furtherance of its business, caused the injury.
Upon trial the jury returned a verdict for the plaintiff. Error was prosecuted to the court of appeals, and the cause is here upon a certificate by that court that the judgment by it agreed upon, if entered, would be inconsistent with the judgment pronounced by the court of appeals of the Eighth Appellate District in the case of Feinberg v The Taber Ice Cream Company.
Messrs Payer, Winch, Minshall & Karch, for plaintiff in error.
Messrs. Dustin, McKeehan, Merrick, Arter & Stewart and Mr. C. M. Horn, for defendant in error.
The parties occupy the same position here as occupied in the trial court and will be referred to as they appeared in the court of common pleas.
The record discloses that the plaintiff, a boy of some 11 years, was injured by the negligent opera- tion of an oil truck. The whole controversy centers around the ownership of the truck, the relationship of its operator to the owner, and the purpose for which it was being operated.
The eyewitnesses to the injury, produced at the trial, consisted of the plaintiff, two companions of about his own age, and the witness Ben Katobsky.
The plaintiff and his two companions gave no testimony tending to establish the ownership of the truck. Their testimony, beyond describing the conduct of the driver of the truck, tended to establish negligence and to prove that the truck was an oil truck, but did not tend in any degree to prove either the ownership of the truck by the defendant or that it was being operated in its behalf.
The witness Katobsky testified that the truck bore upon the tank the name "Lubric Oil," and other words which he did not get. Before he left the stand, however, he testified that he recognized the words "The Lubric" and did not see the word "Oil."
The vice-president of the defendant was called for cross-examination and testified that at the time of the accident the defendant owned a number of oil trucks, which bore the name "The Lubric Oil Company;" that when the trucks were not in use they were kept upon the company's premises, and, so far as he knew, the drivers of the trucks were not permitted to drive the trucks home with them; and that on some Sundays some of the trucks were operated in furtherance of the business of the company and on some Sundays none was so operated. His description of the trucks did not substantially differ from the description of the witness Katobsky.
There was no other evidence upon the subject of the ownership of the truck,...
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