Toms v. Delta Sav. & Loan Ass'n

• Decision Date: 09 February 1955
• Docket Number: No. 33977,33977
• Parties: , 55 O.O. 413 TOMS, a Minor, Appellee, v. The DELTA SAVINGS & LOAN ASS'N, Appellant.
• Court: Ohio Supreme Court

Page 513

162 Ohio St. 513

124 N.E.2d 123, 55 O.O. 413

TOMS, a Minor, Appellee, v. The DELTA SAVINGS & LOAN ASS'N, Appellant.

No. 33977.

Supreme Court of Ohio.

Feb. 9, 1955.

Syllabus by the Court.

1. For the purpose of testing the legal sufficiency of a pleading, a demurrer admits all facts which are well pleaded and all inferences which can reasonably be drawn therefrom, but it does not admit conclusions of law which are at variance with or unsupported by the alleged facts upon which they depend.

2. An allegation in a petition that one person is the 'agent' of another by reason of an 'oral employment and service agreement' constitutes a conclusion of law and is not admitted by a demurrer to such pleading.

3. A petition in an action to recover damages for personal injuries resulting when the plaintiff was struck with a baseball by a member of a baseball team engaged in a game on a public playground, which alleges that, while wearing a uniform and shirt bearing advertising matter promoting the business of the defendant and using the baseball equipment furnished by it under an 'oral employment and service agreement,' the player, 'as agent' for the defendant, 'negligently, carelessly, and recklessly, and with great force and violence struck plaintiff,' does not state facts sufficient to support the pleaded conclusion of agency. Rogers v. Allis-Chalmers Mfg. Co., 153 Ohio St. 513, 92 N.E.2d 667, 18 A.L.R.2d 1363, approved and followed.

An amended petition reading as follows was filed in the Court of Common Pleas of Hamilton County:

'Plaintiff, Howard Alvin Toms, states that hs is a minor 12 years of age, and that he is suing herein by and through Katherine Toms, his mother and next friend, and that said Katherine Toms is a citizen and resident of Hamilton County in the state of Ohio and over 21 years of age.

'Plaintiff further states that the defendant, The Delta Savings & Loan Association, is a corporation duly created, organized and existing by and under the laws of the state of Ohio, and engaged in the business of handling money on savings accounts received from depositors and making mortgage loans on real estate for profit.

'Plaintiff further states that in the spring of the year 1952 said defendant, in advertising and promoting its business of obtaining savings accounts and money from depositors and lending money for profit, entered into an oral employment and service agreement with James Spears, Jr., Ralph Grissom, Philip Hudson, Gerald Toms, Robert Mell, James Sears and several others, comprising an association of baseball players, whereby said defendant obtained and received advertising services and benefits in the promotion of its aforesaid business in exchange and consideration for the use of its baseball uniforms, baseballs, baseball gloves, baseball bats and other baseball equipment owned by defendant and furnished, maintained and provided to and for said members of said baseball team for use in attracting crowds and assemblages of people by playing baseball games, whereby said baseball players advertised and promoted defendant's said business.

'Plaintiff further states that on or about the 23rd day of July, 1952, at LeBlond Field, a public playground in the city of Cincinnati, Ohio, at which time and place this plaintiff and a crowd of persons had assembled to and were witnessing and observing the baseball game being played by the aforesaid baseball team, and while the aforesaid baseball players were engaged in playing said baseball game and in carrying out said advertising and service agreement, and while said baseball players were wearing and displaying upon said uniforms and shirts owned, furnished and provided by said defendant as aforesaid, which said uniforms and shirts carried and bore advertising matter consisting of the words, 'Delta Savings & Loan Association,' one of said players, Philip Hudson, as agent for defendant as hereinbefore set out, and using defendant's equipment and wearing one of the defendant's uniforms and shirts bearing the words 'Delta Savings & Loan Association negligently, carelessly, and recklessly, and with great force and violence, struck plaintiff in the left eye with one of the aforesaid baseballs, causing a traumatic rupture of his eyeball and causing blindness of his said left eye, whereby plaintiff suffered much and great mental and physical pain, suffering and anguish and has been deprived of the use and sight of his said eye, and whereby plaintiff will continue to suffer much and great mental and physical pain, suffering and anguish and will be deprived of the use of his said eye throughout the remainder of his lifetime, all to his damage in the sum of seventy-five thousand ($75,000) dollars, no part of which has ever been paid, although demand has been made therefor.

'Wherefore, plaintiff prays judgment against said defendant in the sum of seventy-five thousand ($75,000) dollars; for his costs harein expended, and all other relief both general and equitable, to which plaintiff may appear entitled.'

A demurrer to the amended petition was filed according to Section 11309, General Code, Section 2309.08, Revised Code, which states:

'The defendant may demur to the petition only when it appears on its face either:

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'10. That the petition does not state facts which show a cause of action.'

The Common Pleas Court sustained the demurrer to the amended petition and, plaintiff not choosing to plead further, rendered final judgment for defendant.

An appeal was perfected to the Court of Appeals for Hamilton County, which reversed the judgment of the Court of Common Pleas, necessarily determining that the amended petition does state sufficient facts to constitute a cause of action against the defendant.

The cause is before this court upon the allowance of a motion to certify the record of the Court of Appeals.

Alfred T. Fulford and Chester R. Shook, Cincinnati, for appellant.

Long & Bloom and John Philip Strother, Cincinnati, for appellee.

MATTHIAS, Judge.

Briefly stated, the question presented is: Does the amended petiton on its face state facts which show a cause of action?

As seen by a reading of the petition, the plaintiff pleads, essentially, that while witnessing a baseball game he was injured when a player named Philip Hudson 'negligently, carelessly, and recklessly, and with great force and violence, struck plaintiff in the left eye' with a baseball, and that said baseball player was wearing a uniform which bore the name, 'Delta Savings & Loan Association.' Plaintiff alleges further that the uniform and equipment being used by this player at the time of the injury were 'owned by defendant and furnished, maintained and provided to and for said members of said baseball team for use in attracting crowds and assemblages of people by playing baseball games, whereby said baseball...