Young v. Featherstone Motors
| Decision Date | 18 March 1954 |
| Citation | 124 N.E.2d 158,55 O.O. 405,97 Ohio App. 158 |
| Parties | , 55 O.O. 405 YOUNG, Appellee, v. FEATHERSTONE MOTORS, Inc. et al., Appellants. |
| Court | Ohio Court of Appeals |
Syllabus by the Court.
1. In a tort action, where the petition alleges that the tort was jointly committed by two persons, who are joined as defendants, and states a cause of action, the evidence establishes facts constituting a cause of action against each defendant but shows that in the commission of the tort one of the defendants was the agent of the other, and the defendants fail to move to require the plaintiff to elect against which defendant to proceed, there is a misjoinder of parties defendant which is waived by the defendants, and their motion for a directed verdict, predicated on such misjoinder, is properly overruled.
2. In a tort action predicated on a collision between two motor vehicles occurring when one vehicle traveling ahead of the other attempted to turn left from the highway, where the specifications of negligence are, with reference to the lead vehicle, that it was not equipped with a rear view mirror, failure to keep it under control, and turning it without giving a proper signal, an answer by the jury to interrogatories that the only act of negligence was the failure to have the lead vehicle equipped with a rear view mirror is not inconsistent with a general verdict for plaintiff.
3. In such an action, the mere fact that the plaintiff was, at the time of the collision, an officer and director of the corporate defendant owning and operating the lead vehicle will not charge the plaintiff with the negligence in not having such vehicle equipped with a rear view mirror.
Hamilton & Kramer, Columbus, for appellee.
Wiles & Doucher, Columbus, for appellants.
This is an appeal on questions of law from a judgment by the Common Pleas Court of Franklin County on a verdict in favor of plaintiff.
Plaintiff alleges he was the owner of an airplane which was stored in a hangar located at the Sullivant Avenue Airport, which is located on the south side of Sullivant Avenue, a short distance beyond the corporate limits of the city of Columbus. Sullivant Avenue is a public street and highway extending in an easterly and westerly direction along the northern boundary of such airport. Plaintiff alleges further that on the afternoon of April 2, 1951, defendants Featherstone Motors, Inc., and Alexander Hendricks owned and operated a motorcycle which was proceeding in a westerly direction on Sullivant Avenue, near the driveway into the airport; that to the rear of said motorcycle one James Maloney was operating a Plymouth automobile, which he owned, in a westerly direction on Sullivant Avenue; that the motorcycle and automobile collided, the motorcycle crashing through the door of the hangar and into the airplane, causing damage in the amount of $1,000; that plaintiff used the airplane in his business; and that he was deprived of the use of the airplane for 30 days, to his damage in the sum of $600.
Plaintiff alleges further that Featherstone and Hendricks were negligent in the following particulars:
1. They operated a motorcycle which was not equipped with a rear vision mirror, making it impossible for them to have a clear view of the traffic as it proceeded west on Sullivant Avenue.
2. They made a left turn, without giving any signal therefor, directly across the path of the vehicle operated by defendant Maloney.
3. They failed to see the vehicle of Maloney, although the way was clear and there was no obstruction to view.
4. They failed to heed the horn signal sounded by Maloney, but cut sharply across the path of Maloney's vehicle.
5. They failed to maintain their motorcycle under control.
6. Maloney was negligent in that he failed and neglected to maintain his automobile under control.
Plaintiff alleges further that the negligence of the defendants was the direct and proximate cause of the damage and asks damages in the sum of $1,600 against the defendants and each of them.
In a joint answer by Featherstone and Hendricks, they allege that on said date a motorcycle belonging to Featherstone was being operated in a westerly direction on Sullivant Avenue, and that a collision occurred between the motorcycle and a motor vehicle being operated by Maloney. The answer interposes a general denial and an admission of negligence as alleged against Maloney.
In a separate answer, Maloney alleges that if plaintiff suffered any damage it was not because of Maloney's negligence, but was caused by the negligence of the other defendants, which allegation was followed by a general denial.
The evidence shows that Hendricks was proceeding westerly on Sullivant Avenue at a rate of speed of between 35 and 40 miles per hour; that Maloney was driving his automobile at some distance to the rear at about the same rate of speed; that as Hendricks neared the entrance to the airport he signaled that he was about to make a left turn, by extending his left arm; that Maloney accelerated his speed to about 50 miles per hour intending to pass Hendricks on the left; that, as Hendricks turned left to enter the entrance to the airport, Maloney's automobile and the motorcycle collided; that the collision occurred near the south edge of the highway; that Maloney applied his brakes but did not sound the horn or give any signal of his intention to pass; and that skid marks made by Maloney's automobile extended about 100 feet east of the point of collision, starting in the north lane or near the center of said highway, and then diagonally across the south lane of the highway to the point of collision. Hendricks testified that he knew that Maloney's automobile was following at his rear for a distance of several blocks; that he observed said automobile by turning his head; and that he signaled twice of his intention to make a left turn, by extending his arm. The motorcycle was not equipped with a rear view mirror as required by law.
The evidence shows that, when the collision occurred, Hendricks was thrown off the motorcycle which was a heavy three-wheeled vehicle; that the motorcycle continued on into the airport, crashed through the door of the hangar and collided with the airplane, causing substantial damage. The difference in the reasonable value of the airplane before and after the collision was $1,000. The Plaintiff claims damages for loss of use of the airplane in his business, which was that of an automobile salesman. The evidence shows that the airplane was under repair for less than ten days, but plaintiff in his petition claims loss of use for 30 days, and that a reasonable rent charge for a like airplane was $25 per day. The plaintiff did not rent another airplane and did not testify specifically as to the necessity for the use of an airplane during the time his airplane was out of use. Plaintiff's claim of damages for loss of business use is based on his testimony that he would occasionally fly to other cities over the week ends; that on several occasions he flew auto parts to other cities; and that he would take a friend for a ride in the airplane during the week end with the thought in mind that he would be better able to sell such friend automobiles. The evidence shows further that plaintiff was sales manager, officer and director of Featherstone.
On the question of loss of use of the airplane for business purposes, the plaintiff on cross-examination testified as follows:
'
The evidence shows that Hendricks was an employee of Featherstone, that Featherstone owned the motorcycle, and that at the time of the collision Hendricks was on a mission to get an automobile at the airport and return it to Featherstone for purpose of repair.
At the close of plaintiff's case, and at the close of all the evidence, counsel for Featherstone and Hendricks moved for directed verdict, which motion was overruled.
The jury returned a general verdict against all three defendants in the sum of $1,600. Counsel for Featherstone and Hendricks submitted interrogatories which were answered by the jury as follows:
Featherstone and Hendricks filed a motion for judgment notwithstanding the verdict, which was overruled; also a motion for new trial, which was overruled. Featherstone and Hendricks are the only appellants.
Appellants have filed seven assignments of error, as follows:
1. In overruling motion for directed verdict at close of plaintiff's case.
2. In overruling motion for directed verdict at close of all the evidence.
3. In overruling motion for judgment...
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