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

Plaintiff sued for damages for injuries sustained on being struck in the eye by a golf ball, which he alleges was negligently driven by an employee of defendant company, acting within the scope of his employment.

The trial court sustained defendant's motion for a directed verdict based on the opening statement of plaintiff's counsel, after opportunity given to amplify, add to, explain, and qualify the same.

The propriety of such a ruling in a proper case is established in Cornell v. Morrison, 87 Ohio St. 215, 100 N.E. 817;Cincinnati Gas Electric Co. v. Archdeacon, Admr., 80 Ohio St. 27, 88 N.E. 125. See, also, 39 Ohio Jurisprudence, 883, Section 225 et seq.

By the motion, and for its purposes, the defendant admitted the truth of all the statements plaintiff proposed to establish by evidence.

On giving plaintiff's counsel opportunity to enlarge upon his opening statement, the court directed that it be confined to the question of whether the employee involved was acting within the scope of his employment, so as to render defendant company responsible for his acts.

Plaintiff stated that his proof would show that the Norwood plant of the defendant company — a nationally advertised heavy industry, manufacturing heavy machinery and equipment — appropriated a sum of money on a yearly basis with which to foster and provide athletic and recreational activities and games for its employees, both intramural and in competition with the teams of other industries; that it employed an athletic director, who, at the request of the Norwood Y.M.C.A., whose stated purpose was to improve industrial relations, paid the Y.M.C.A. the sum of $25, and agreed to enter a company team in an industrial golf league competing against similar recruited teams after working hours; that the captain of the Norwood plant team asked one Haas if he would play thereon, which he voluntarily agreed to do; that the greens' fees were paid for the players out of the funds appropriated by the Norwood plant, as stated above; that the Norwood plant also furnished its employees with a T shirt, upon which the name of the defendant company appeared; that after working hours, at about 5:30 p.m., on the day in question, plaintiff was on the Avon Fields public golf course and drove his ball from the 13th tee in a southerly direction toward the green and had approached his drive which came to rest on the left edge of the fairway, and was in the act of selecting a club from the bag which he carried himself in order to make a second shot toward the 13th green; that defendant's employee Haas drove his ball from the 14th tee, which hole runs south to north, and whose fairway parallels that of the 13th; that he gave no notice of his intention to drive by calling out the warning signal of the game "fore"; that his drive hooked to the left after he hit the ball and on noticing its direction toward plaintiff, the cry of "fore" was given; and that plaintiff looked up in the direction from which the cry came and was struck in the eye by the ball.

No statement appears in the record as to the distance between plaintiff and Haas, except that a blow such as that hit by Haas will drive a ball at the rate of 110 to 120 miles per hour at its maximum and would traverse the distance separating the two players in something in the neighborhood of two seconds.

Plaintiff contends under that statement the defendant company was engaged in playing golf through its agent and employee, Haas, so that the doctrine of respondeat superior applies to hold defendant company liable for the negligence of Haas

Defendant contends no cause of action has been stated against it, since Haas at the time and place was not acting within the scope of his employment, hence, the doctrine of respondeatsuperior does not apply.

Plaintiff relies upon Ott v. Indus. Comm., 83 Ohio App. 13,82 N.E.2d 137, and other workmen's compensation cases. Such cases do not apply.

The right to participate in the workmen's compensation fund is wholly statutory, and is in no way dependent upon the principles of the common law, whereby a master or principal is sought to be held liable for the torts of a servant or agent upon application of the doctrine of respondeat superior. In the Ott case, this court merely found from the facts that there was sufficient relationship in the activity of the deceased at the time of his death to his employment to justify the conclusion that claimant was entitled to participate in the fund under the Constitution, statutes, and rules of the commission. Under the liberal construction required of workmen's compensation laws, a mere causal connection is held to be sufficient to satisfy the statutory requirement that the injury be received in the course of and arise out of the employment. And no inquiry is required or made as to whether the injured workman at the time and place of injury was actually acting within the scope of his employment, as required to fix liability under the doctrine of respondeatsuperior. In such cases where inquiry as to the scope of employment is made, it is not for the purpose of determining that question in the first instance, but only to determine the question of causal connection.

In Tarlecka v. Morgan, 125 Ohio St. 319, 181 N.E. 450, it is stated in the fourth paragraph of the syllabus:

"The expression ``scope of employment' cannot be accurately defined, because it is a question of fact to be determined according to the peculiar facts of each case."

As to the general principles upon which liability rests from a wealth of text and case material, we quote 26 Ohio Jurisprudence, 620, Section 598:

"The liability of one person for damages arising from the negligence or misfeasance of another, on the principle ofrespondeat superior, is confined in its application to the relation of master and servant, or of principal and agent. In order, then, to permit a recovery, in such case, it must be shown that the relation between the parties sought to be held liable and the person doing the act complained of was that of master and servant, or of principal and agent, in reference to the very act complained of. The maxim ``respondeat superior' does not apply where this relation does not exist. The direct coincidence and coexistence of the rule of respondeat superior with the relation to which it belongs is an unvarying test of its application."

Section 599 of the same volume states:

"* * * The mere fact that one is employed by another does not render the latter liable for all acts of the former. The relationship and the master's liability depends upon whether the person who did the injury complained of was acting under his employer's control or direction, in doing the work from which the injury resulted. If the person so acted, he is a servant and the master is responsible; otherwise, there is no such relation and he and not the master, is liable for the injury."

The fourth paragraph of the syllabus in Clark v. Fry, 8 Ohio St. 358, 72 Am. Dec., 590, states:

"The rule of respondeat superior, as its terms import, arises only out of the relation of superior and subordinate, is applicable to that relation wherever it exists, as between principal and agent, or master and servant, is coextensive with it, and ceases when that relation ceases to exist; and the reason of it is to be traced to the power of control and direction, which the superior has a right to exercise, and which, for the safety of others, he is bound to exercise over the acts of his subordinates."

Section 614 in 26 Ohio Jurisprudence, 633, states:

"The master is not liable for the acts of his servant done outside of his employment. A railroad company whose line crosses a highway is under no obligation to remove from the highway an obstruction placed upon it, at a crossing, by one of its brakemen, without authority of the company, and while acting outside the scope of his employment, even though he did it during the existence of the employment. In the customary legal phraseology, to make the master responsible for the acts of his servant, the act must be done in the scope or course of the servant's employment, that is, under the express or implied authority of the master. Beyond the scope of his employment, the servant is as much a stranger to the master as any third person.

"The master is not liable for the act unless it is done for the purpose, and as a means, of doing what the servant is employed to do, or unless it is part of an actual duty connected with his employment. If an employee goes outside of his work and employment to commit an act of violence, which is not necessary in the performance of his work, the employer is not liable."

And it is stated in Section 615 of the same volume:

"There is a marked distinction between an act done by the servant during his employment, and an act done within the scope of his employment. The master has a right to assign duties to his servants, and no assumption of duties not assigned will bring those duties within the scope of his employment as defined by the master, and when an act is not within the scope of a servant's employment, it is manifest that it cannot be within either the express or implied authorization of the master."

See 35 American Jurisprudence, 973, Section 543, et seq., wherein it is stated at page 974: "Power to control the acts of the wrongdoer must, of course, have been vested in the defendant at the time of the injurious occurrence."

Whatever its motive and whatever benefit the Norwood plant conceived flowed to it as the result of sponsoring and financing an organized recreational plan for its employees, it seems clear that any participating employee while so engaged would not be acting within the scope of the employment for which he was paid and by which he earned his daily bread. Neither do we consider Haas the agent of the company in voluntarily playing golf as a form of recreation for himself. He was asked to participate, not ordered so to do, nor could he have been so ordered; he could have refused to play at all, or to drive off the 14th tee after starting to play without being amenable to discipline for violating any of the terms of his employment; the defendant had no control at all over his conduct on the golf course. While identified in some manner with the defendant company by his T shirt, proof of that fact created no inference he was employed to play golf and was at that time, which was after the regular working hours, acting within the scope of his employment. The rules of proof set out inWhite Oak Coal Co. v. Rivoux, Admx., 88 Ohio St. 18,102 N.E. 302, 46 L.R.A. (N.S.), 1091, Ann. Cas. 1914C, 1082; Sobolovitz v.Lubric Oil Co., 107 Ohio St. 204, 140 N.E. 634; and Halkias v.Willkoff Co., 141 Ohio St. 139, 47 N.E.2d 199, are applicable and dispositive of this case.

Plaintiff relies on Lake City Malleable Co. v. Cavanaugh (unreported — Cuyahoga County Court of Appeals, 1943). There being no opinion and no official report of that case, this court cannot comment thereon, or be bound in any manner by it. We distinguish the case of Ackerson, Admx., v. Jennings Co., Inc.,107 Conn. 393, 140 A. 760, on its facts. The cited Restatement of the Law of Agency, Sections 212, 228 and 236, do not seem to apply, but rather reference is made to Sections 1 and 2, at pages 7 and 11, respectively, therein.

The judgment is affirmed.

Judgment affirmed.

HILDEBRANT and MATTHEWS, JJ., concur in the syllabus, opinion and judgment.