Rogers v. Allis Chalmers Mfg. Co. , 85 Ohio App. 421 ( 1949 )

Judgment was rendered for the defendant upon the opening statement of counsel for plaintiff, upon a verdict instructed by the court rendered upon the motion of the defendant for same.

The plaintiff was given the opportunity to amplify his statement upon one issue only, to wit, that the liability of the defendant was predicated upon the rule of respondeat superior, or as the court stated, the scope of employment or agency.

Such a motion so directed partakes much of the character of a demurrer. In effect, it admits the stated allegations of proposed proof are true, but denies any legal efficacy of such facts to sustain the alleged cause of action of plaintiff.

In Neckel v. Fox, 110 Ohio St. 150, at page 152,143 N.E. 389, it is stated in a per curiam opinion: "This court is not disposed to give too rigid a construction to the terms employed in the statement by counsel for plaintiff."

In that case, the Supreme Court reviewed a judgment of the Court of Appeals affirming a judgment on the pleadings and opening statement of counsel, and further stated the facts were too "meagerly stated and were very uncertain in vital respects."

That case involved statements of a plaintiff's counsel concerning the liability of a landlord for injuries to a visitor to a tenant. Plaintiff's counsel stated that the defendant was "in full possession of said premises" and retained possession to make repairs. The similarity in general quality of these statements to those herein involved will be later considered.

In Davis Laundry Cleaning Co. v. Whitmore, 92 Ohio St. 44,110 N.E. 518, Ann. Cas. 1917C, 988, the Supreme Court affirmed the judgment of the Court of Appeals which reversed a judgment rendered by the trial court on the opening statement of counsel.

See, also, 39 Ohio Jurisprudence, 883, Trial, Section 225. In Section 227, page 886, Id., it is stated:

"In ruling on a motion to direct a verdict for the defendant on the opening statement of the plaintiff's counsel, the trial court must interpret the statement most favorably to the plaintiff, or, in the language of some cases, must give it the most liberal construction possible in favor of the plaintiff. The truthfulness of the facts stated therein is to be assumed, and a reasonable and liberal construction is to be given the statement so that it may be allowed to stand, in order that the well-known principle that every litigant should have his day in court may be vindicated. To this end the court is required to take into consideration the admissions made in the pleadings in regard to that part of the statement favoring the plaintiff, even though inconsistent with other parts of the statement, and to give the plaintiff the benefit of any reasonable inferences in his favor which are warranted by, or may be drawn from, the facts as stated. Nothing should be taken against the party making the statement."

This court, in an opinion by Judge Hildebrant, quoted with approval the statement made in 2 Ohio Jurisprudence, 1061, Appeal and Error, Section 832, in the case of Wainscott v. Young,74 Ohio App. 463, at page 465, 59 N.E.2d 609:

"In 2 Ohio Jurisprudence, 1061, Section 832, it is stated:

"`It is reversible error for the court to enter judgment for the defendant because of admissions made by plaintiff's attorney in opening the case to the jury, where such admissions do not include every fact necessary to defeat the plaintiff; or to direct a verdict for the defendant because of the insufficiency of the opening statement of plaintiff's counsel, if such statement is at least as broad as the petition and the petition states a good cause of action; or, if, giving such statement a reasonable and liberal interpretation, it is sufficient to entitle the plaintiff to offer proof of his cause of action and no motion has been made to make either the statement or the petition more clear and definite.'"

Judgment on the opening statement was reversed.

To the same effect, see: Reitenbach v. Botzum Theatres Co., 18 Ohio Law Abs., 310; Hayes v. Barnes, 32 Ohio Law Abs., 274; Rubin v. Rainbo Baking Co., 36 Ohio Law Abs., 476, 44 N.E.2d 483 (a decision by this court); K. S. Realty Co. v. Rosen, 47 Ohio Law Abs., 316, 72 N.E.2d 116.

An examination of these authorities indicates the extreme reluctance of courts to sustain such motions and that only where it clearly appears proof of a cause of action could not be included within the fullest extent of the allegations of intent to prove, will judgment be rendered adversely to the party making the opening statement.

It will be noted also that the party is not required to make such opening statement, but may do so. Section 11420-1, paragraph 1, General Code.

An opening statement cannot be intended to be a full development of all the evidence later to be introduced by a party. Its purpose is to outline to the jury the general conception of the party's case.

It is evidence, not statements, which sustains a cause of action. Naturally, if counsel make admissions which preclude recovery, a different situation is presented. The penalty of an instructed verdict should be limited to affirmative statements prejudicial to a party rather than to matters of mere omission.

The statement from Emmerson v. Weeks, 58 Cal. 382, quoted inCornell v. Morrison, 87 Ohio St. 215, at page 222,100 N.E. 817, appears to announce the better rule:

"In the case of Emmerson v. Weeks, 58 Cal. 382, this language is used: `It would be much better not to non-suit on an opening statement, unless it is clearly made and it is plainly evident therefrom that no case can be made out.'"

In the petition it is alleged that "The defendant in its business of advertising its name and products and in the course of maintaining the health and good will of its employees engages in, through its officers, agents and employees games of golf and other athletic contests." It is alleged further that the plaintiff while playing a game of golf was struck by a ball negligently driven by an employee of defendant also playing golf upon the same course, causing certain injuries alleged. It is alleged further that such negligence consisted in a violation of the known rules of the game. The plaintiff states in his petition: "In failing to call `fore' which is a word of general warning used in the game."

The defendant in an amended answer admitted it advertised its products and denied that it was engaged in games of golf. Defendant admitted plaintiff was engaged in playing golf and was injured. The amended answer also contains allegations of contributory negligence and assumption of risk. A reply was filed denying contributory negligence and that plaintiff assumed the risk of the defendant's negligence.

Counsel for plaintiff in his opening statement first outlined the general character of the game of golf and the manner in which it was played. He called attention to the custom of the game requiring a warning signal to be given prior to driving a ball, and noted that none in the instant case was given until after the ball was struck.

A diagram upon a blackboard was used, which is not brought before the court by copy or otherwise. Counsel then described how the plaintiff, proceeding in one fairway, was struck by the ball driven by defendant's employee who was proceeding down a parallel fairway. Counsel then proceeded to explain why the action was brought against the defendant corporation instead of its employee. He stated "Mr. Haas was an employee of some duration of The Allis Chalmers Manufacturing Company, and that company had seen fit, so the evidence will disclose, to engage in, among other activities, the promoting and sponsoring and, if you please, supervising of athletics to be engaged in by its employees." (Emphasis added.) Counsel further stated:

"There is a fine institution in Norwood, the Norwood Y.M.C.A., which promoted an industrial golf league in the spring of 1947, and it wrote to the industries in Norwood, including among those industries the Allis Chalmers Manufacturing Company, and it said this: We are interested in fostering industrial relations and if the Allis Chalmers Manufacturing Company cares to participate will you tell us what you want to participate in, when you can participate, and will you pay us an entrance fee to cover the type of thing that anybody runs into promoting a league, and the Allis Chalmers Manufacturing Company said: Yes, we are interested in participating and we are going to participate in playing golf at five o'clock and here is our $25 entrance fee. And thereupon the Allis Chalmers Manufacturing Company entered into that league a golf team which played under the sweater and under the banner of the Allis Chalmers Manufacturing Company, the sweaters — the `T' shirts, if you please — with the Allis Chalmers name on them were furnished their own employees who cared to participate in them. Further than that, the Allis Chalmers Manufacturing Company paid the green fees for their own team. I might say that on almost any public golf course there is a given charge to play. There is a charge at Avon Fields and there was a charge to Mr. Haas playing on this golf course on this Monday afternoon, and that charge was paid for out of the treasury, out of the funds and the money of the Allis Chalmers Manufacturing Company. The name of that golf team found prominence on the bulletin boards at the golf course and prominence in the newspapers of this community as that particular team, and at the end of the year the company through its supervisor of athletics, who supervises all sorts of athletics including this, promoted somewhat of a banquet at which they award letters or sweaters and prizes, all bearing the name of the Allis Chalmers Company. And so the second issue which the plaintiff, we feel and hope, will sustain to you is that Mr. Haas in playing golf that afternoon was on or about the business of his employer, the Allis Chalmers Manufacturing Company, and that is why this suit is against this defendant."

Counsel then described plaintiff's injuries, and at this point the defendant made a motion for an instructed verdict. After some discussion, counsel for plaintiff again resumed his statement:

"The directions from the 13th tee to the 13th green is north to south and from the 14th tee to the 14th green is south to north, and the fairways of said holes border on the same rough grass. The plaintiff was generally in front of and a little to the left of the intended line of flight of Haas' ball —

"The Court: How does that lead up to the question of agency?

"Mr. Hogan: I am a little afraid I didn't go into negligence very much.

"The Court: Don't bother about that.

"Mr. Hogan: If counsel will so agree.

"The Court: You have stated enough on the subject of negligence. Confine it to the relationship existing between the man who hit the ball and the company at the time the accident occurred, whether or not at that time he was in the scope of his employment. In other words, you establish agency.

"Mr. Hogan: I don't want to get tripped up on some side point, Judge.

"To go on, Haas was a full-time employee, in the sense of an eight-hour day, five day week, of the Allis Chalmers Manufacturing Company. He was asked in the spring of 1947 whether or not he cared to play golf on a team in the Y.M.C.A. Industrial League at five o'clock.

"The Court: Asked by whom?

"Mr. Hogan: He was asked by Robert Barbeau, who was the captain of the team, and Barbeau had been asked to make up the team by William Kellar, who was an employee of the Allis Chalmers Manufacturing Company with the title of supervisor of athletics of the Norwood Works of Allis Chalmers.

"Mr. Headley, Sr.: Do you mind if I interrupt you?

"Mr. Hogan: No.

"Mr. Headley, Sr.: You can't prove there was any supervisor of athletics out there, if you want to be right about it.

"Mr. Hogan: Kellar will say that is what his title is; that is what he is going to say.

"Mr. Headley, Sr.: That's not the case but he has a right to say that in opening statement.

"Mr. Hogan: The Allis Chalmers Company Norwood Works had a section or department or some unit in charge of supervising and promoting an athletic program for the employees of the company. Keller, in 1947, was in charge of this. In January or February, 1947, he submitted an athletic budget to the higher-ups of the company and was given an allowance of something in the neighborhood of three thousand dollars to be spent by him in promoting athletic activity among the employees of the company. This activity took two forms, industrial and intramural; the former meaning that teams under the company name were entered in leagues to combat with teams playing under other company names at places not owned by the company, and the latter meaning strictly intramural and on the company premises.

"The Court: What you mean to say is that the other companies participating in the league were also industrial firms.

"Mr. Hogan: Yes, your Honor.

"The Allis Chalmers Company spent twenty-five dollars of its own money to enter a team in the Norwood `Y' Industrial League after the company had received some correspondence from the Norwood `Y' which asked: `Could your industry participate at five p.m. in men's industrial golf?' The letter from the Norwood `Y' which contained this question was addressed to the Allis Chalmers Company, and after the Allis Chalmers Company got it, its athletic director, Kellar, saw to it that a company check for the entrance fee was sent in to the Norwood `Y,' and Kellar also asked Barbeau to captain the team. The Allis Chalmers Company paid the greens' fees of this team every Monday. Haas was a regular member of this team which played in the Norwood `Y' league under the name of Allis Chalmers Company and he was playing when the occurrence took place. In addition he was wearing a `T' shirt bearing the company name which had been furnished to him by Kellar and which had been paid for by Allis Chalmers Company. After the accident Haas promptly reported it to Kellar."

Upon which, the court, without any renewal of the motion by defendant, instructed a verdict for the defendant. These statements, construed as is required by the rules set forth in the authorities hereinbefore noted, are sufficiently broad to include a claim of proof that the defendant requested its employee to play golf for it, and that in doing so, such employee negligently caused the plaintiff's injuries, by violating the rules and customs of the game of golf.

The fact that the employee was asked "whether or not" he would play instead of being ordered to play is sufficient. Compensation for such playing at the request of defendant could have no bearing on liability. Gratuitous employment may develop responsibility. It is stated he did so play upon the defendant's team after such request.

The evidence probably would show the several incidents of this undertaking and might or might not prove liability in the defendant. Strictly construed, the statements of counsel should have been amplified to have definitely detailed the nature of the entire arrangement. This defect, if it is a defect, is one of omission, not an affirmative prejudicial admission, preventing recovery.

The allegations were sufficiently broad to include facts which would have justified responsibility in the defendant.

A more serious problem presents itself involving the question of admission of assumption of risk.

It will be remembered, however, that counsel's attempt to amplify this phase of liability was stopped by the court, who stated that further statement would be limited to the elements of scope of employment and agency. What counsel might have said is left to speculation. It is to be noted also that a participant in a game of sport is presumed to assume only the normal risks incident to such sport. He has a right to assume that the game will be played according to rules which form the custom applicable to the game. Counsel had alleged and stated that certain customs and rules of the game of golf were not followed by the employee of the defendant. Suppose that a rule of the game required a player to wait until a player in advance had driven his second ball before the following player could drive off a tee, and by the violation of such rule the advance player was struck. Could it be said the injured player assumed the violation of such rule?

It is the normal, reasonable, naturally to be anticipated incidents of a game that one engaged therein, is required to foresee, and if it can be shown that a custom or rule of the game of golf requires a player under the circumstances here prevailing to call out before driving, thus establishing a recognized standard of care, and a failure so to do was the proximate cause of the plaintiff's injuries, it may well be that a jury might properly conclude that such violation of the rules, and failure to exercise such standard of care, so causing injury, constituted actionable negligence.

In Ivory v. Cincinnati Baseball Club Co., 62 Ohio App. 514, at page 517 of the opinion, it is stated:

"It is a universal principle that when two persons come into such nearness to one another that they, and the agencies under their control, may cause injury to one another a duty devolves upon them to so conduct themselves and so manage the agencies under their control that neither will be injured by failure of the other to conform to the standard of duty, the exact extent of the duty depending upon the attending circumstances."

From the statements made by plaintiff's counsel it appears that a "standard of care" in the playing of golf required a player to call "Fore" before playing the ball. This is alleged in the petition and denied in the answer.

Factual questions are thus involved requiring action by a jury.

In Cincinnati Baseball Club v. Eno, 112 Ohio St. 175,147 N.E. 86, the court draws a distinction between a game of baseball being played in the normal manner and batting practice between games, holding that a jury question is presented whether a spectator assumes risk of injury from the latter situation and as a matter of law assumes risk of a game being played according to national custom.

To the same effect is Douglas v. Converse, 248 Pa., 232,93 A. 955, involving the playing of a game of polo.

The fact that the plaintiff in the cited cases is a spectator and not a participant in the games is not overlooked, but it would seem the principle involved is the same, in that in each case the injured person is held to assume only those risks which are incident to the employment of the standard of care existing in the enterprise. In the one case, the plaintiff assumes the risk of a normal game of baseball or polo; in the instant case, the player assumes the risk of a normal game of golf, played according to the rules and customs of the game and pursuant to the standard of care involved.

Defendant cites the case of Benjamin v. Nernberg, 102 Pa. Sup. Ct., 471, 157 A. 10. In the opinion in that case at page 475, it is stated:

"There was no duty, under the facts of this case, on defendant to warn plaintiff of his intention to play. We cannot see that defendant was at fault or that he disregarded any rule or customof the game." (Emphasis added.)

In that cited case, the plaintiff was struck in the face while putting on a green by a ball driven by a player on another fairway. Later in the opinion, the court says:

"Having already decided that there was no duty on defendant to warn plaintiff of the intended play, it follows that, if plaintiff was struck by a ball driven by defendant, the plaintiff had assumed, as a matter of law, the risk of injury resulting from his own participation in the game he and all the others were then playing."

In the cited case, as in the instant case, the claim that the rules of the game of golf required warning previous to driving the ball was denied. Certainly, neither the trial court nor this court can take judicial notice of the rules and customs or the standards of care of the game of golf. Such matter would require evidence as to the standard of care required. Englehardt, aMinor, v. Philipps, 136 Ohio St. 73, 23 N.E.2d 829.

In Toohey v. Webster, 97 N.J. Law Rep., 545, 117 A. 838, 23 A.L.R., 440, liability was imposed upon a player who injured a caddy employed by another player, where customs of the game were ignored by the defendant player. This case is said not to be in point in Benjamin v. Nernberg, supra. To the same effect as the last case is the decision of this court in Gardner, a Minor, v.Heldman, 82 Ohio App. 1, 80 N.E.2d 681.

For the reason that the statements of counsel for plaintiff were broad enough to include proof showing that an employee of the defendant, at its request, acting for it, and within the scope of his employment or agency caused the plaintiff injury, and because the court unduly limited such statement upon the issue of contributory negligence or assumption of risk, and because in such statement, as was permitted, the plaintiff was not shown to be guilty of contributory negligence or to have assumed the risk causing his injury, it is my opinion that the judgment of the trial court should be reversed and the cause remanded for further proceedings.