Kates v. Industrial Commission

OPINION

By SKEEL, P. J.

This case comes to this court on questions of law. The plaintiff administrator appealed to common pleas court from a decision, upon rehearing, of The Industrial Commission’s finding that “proof on file does not show that the decedent’s death was due to an injury sustained in the course of and arising out of employment.” The common pleas court reversed the Commission and gave judgment, to the plaintiff.

The decedent, Frank Yaro Cherney, was an employee of The J. H. Harper Company. The said company was a contributor to the fund administered by the Industrial Commission as provided by law.

On the day that Frank Yaro Cherney met with the accident that caused his death, he had been working for his employer at The Otis Steel Company (Jones-Laughlin Steel Company) 3341 Jennings Road, Cleveland, Ohio. The J. L. Harper Company had a garage located at 3625 Prospect Avenue in Cleveland where it kept a truck and other equipment used in its business. The deceased was a helper for Jesse Lee Kaiser, employed “in conection with the drilling operations of said company” and on the day in question and for some time prior thereto, was drilling holes for blasting purposes at the Jennings Road property of The Otis Steel Company.

The employees of The J. L. Harper Company working at Otis Steel Company would report at the garage “for the start of the day’s work” and from this point would drive or be driven to the steel plant in the truck of the employer and when the day’s work was over they would be returned to the garage in the same manner.

. The.route which was generally followed in going from the garage to the steel plant and back, was over Prospect Avenue to East 30th Street; from there to Broadway; then over Broadway to Independence Road; then over Independence Road to the Jefferson Bridge and then over West 3r$ Street to the steel plant.

On the evening in question, the deceased and Mr. Kaiser, after the day’s work was finished, left the Otis Steel Company at about 4:30 P. M. Instead of going to the garage in the usual way Mr. Kaiser directed the deceased to drive him to 700 Prospect Avenue. Upon arriving at this point Mr. Kaiser got out of the truck and directed the deceased to drive the truck back to the garage at 3625 Prospect Avenue, a distance of about a mile and a quarter directly ahead and in the same direction in which the truck was headed. In giving this direction to the deceased, Kaiser said: “You put the truck away and I will see you in the morning.” This conversation took place at about 5:00 P. M. Thereafter Kaiser saw the decedent drive the truck east on Prospect Avenue. There is no evidence of the activities of the deceased from the time he left Kaiser at 5:00 P. M. driving the truck in an easterly direction on Prospect Avenue until 7:30 P. M. of. the same evening at which time while driving the said truck east on Woodland Avenue in the vicinity of E. 28th Street, a point over a mile to the south of where he was directed to go, he was involved in a collision in which he was fatally injured. The deceased died at Charity Hospital on June 7, 1942. From the stipulation of fact it is clear that the deceased was not employed as a truck driver. His job was to assist Kaiser. He was directed to drive the truck on the night in question under the circumstances above set forth.

The sole question is whether or not plaintiff established by any degree of proof that the deceased came'to his death as a result of and while acting within the scope and course of his employment. It is the contention of the appellee that because at 5 P. M. on the day in question the deceased was instructed to operate the truck to the garage by his employer, and that two and one-half hours later, at the time of the accident which caused his death he was in fact driving the said truck at a point far removed from the place he was directed to go, that the mere fact that he was still in possession of the truck raises a rebutable inference or presumption that at the time of the accident which caused his death, he was acting within the course and scope of his employment.

In support of such conténtion, the plaintiff cites the discussion under the title “Master and Servant” 26 O Jur 680; sec. 675; where it is said:

“The fact that one is in possession of the automobile of another, coupled with the additional fact that he is employed by the owner to drive and care for it form a chain of circumstantial evidence from which a jury is authorized to infer the further fact that the employee is using the machine upon the employer’s business and is acting within the scope of his employment unless the evidence shows that he was not so engagéd at the time on any business for his master, but was proceeding on business of his own.”

It must be noticed that the rule as thus stated is bottomed on two facts: 1st, that the employee is found “in possession of his employer’s vehicle” and 2nd, that he is “employed to drive and care for the same.” An examination of the cases cited in support of this rule clearly develops the importance of these elements. In the case of Coal Co. v Rivoux, 88 Oh St 18, the coal company was sued for damages growing out of injuries sustained by the plaintiff through the claimed negligent operation of one of its automobiles by one of the employees of the company. The proof showed that the vehicle was in the possession of and being driven by such employee but the defendant claimed that he was not then acting in the course and scope of his employment. The plaintiff contended that the fact that such employee was in possession of the vehicle was evidence tending to establish the fact that he was acting within the course and scope of his employment and upon such showing the burden of showing he was not acting within the scope of his employment is upon the defendant.

The supreme court in reversing this holding said on page 25 of the opinion:

“Assuming that such a presumption did arise the burden so called would not require defendant to do more than introduce evidence sufficient to countervail this presumption— it was not required to overbalance or outweigh it. Klunk v Hocking Valley Railway Co., 74 Oh St 125. But did such a presumption arise from the facts established by plaintiff below? The ownership of the automobile was established and it was shown that Tribbey was operating the car at the time of the accident and that he was an employee of the company. Is it to be inferred from these facts that Tribbey was acting within the scope of his employment? It was conceded that he was an employee, but was there any evidence offered by plaintiff tending to prove that he was an employee or servant employed in connection with the particular. instrument which caused the death of decedent? Not only .was there no evidence in support of such a claim, but on the contrary it appears from the testimony of plaintiff’s own witnesses that Tribbey was a cashier or bookkeeper in the office of the. company and that the care, storage and repairs of the automobile were under the control of another employe — a traveling salesman, for whose sole use and purposes the same had been purchased.

Further, there was no evidence offered on the part of plaintiff, tending to prove that Tribbey was operating the automobile, at the time of the accident, with the knowledge, consent or authority of the company, or that he had ever so operated it. In addition to the cases cited by defendant in error, we have examined and considered a number of other ‘automobile cases’ and we find that in these cases at the time of the accident the automobile was in charge of a servant of the owner — a chauffeur in most instances — whose duty it was to operate the automobile and who was rightly in the possession and use of the same with the consent, knowledge and authority of the owner.”

Paragraphs 2 and 3 of the syllabus hold:

“2.' The facts that the automobile was owned by defendant, and that the same was negligently operated by an employe, do not make a prima facie case of negligence against the owner, unless it appears that the employe was driving the automobile with authority, express or implied, of the owner.”

“3. A bookkeeper or cashier employed in the office of the company is not .presumed from that fact alone to have the implied authority to use or operate an automobile purchased and owned by the company, for the use and purpose of a traveling salesman.”

The rule as thus- stated was followed in the case of Hawkins v Wilkoff Co., 141 Oh St 139 at page 142 as follows:

“The general rule is that the law raises no presumption of agency. It is a matter to be proved; 2 Amer. Juris. 349, 442. Some courts, however, hold that proof of ownership of an instrumentality, such as the crane in this case, is sufficient to establish a prima facie case that a person operating it is in the owner’s employ for that purpose and as such is, at a specific time, acting within the scope of his authority.

This court, however, is committed to the proposition that proof of ownership alone is not sufficient to raise such an inference of fact. To raise an inference, it must be shown, in addition to such ownership, not only that the operator is air employee of the owner, but that he is employed generally in the business of his employer to operate such instrumentality. White Oak Coal Co. v Rivoux, Admrx., supra; Lima Ry. Co. v Little, supra; Sobolovitz v Lubric Oil Co., 107 Oh St 204, 140 N. E 634 ****#»

Also, in the case of Smith v Baskins, 59 Oh Ap 298, at page 300 the court says:

“* * * * * The evidence that the employee was engaged in delivering groceries distinguishes this case from White Oak Coal Co., v Rivoux, Admrx., 88 Oh St 18.”

As was indicated above, the deceased was employed as a helper for Kaiser who was employed as a driller. Whether or not he would drive the truck on a particular day was dependent upon what he was told to do by his superior. On the day in question he was directed by Kaiser to drive him to 700 Prospect Avenue • after they had completed their day’s work at the steel plant. Thereafter he was directed to drive the truck to the garage at 3625 Prospect Avenue about one mile and a quarter east of and on the same street where he left his foreman. Not one syllable of evidence appears in the record of his activities after Kaiser saw him start east on Prospect Avenue until 2% hours later when he was involved in the collision at E. 28th and Woodland Avenue that caused his death.

Under such circumstances, that is, by the lapse of time and the wide departure from the instructions which he received with respect to putting the truck in the garage, there can be no inference from the deceased’s possession of the truck that he was then acting within the scope of course of his employment.

There being no evidence in support of a necessary element of plaintiff’s case, the judgment of the common pleas court is reversed and final judgment is entered for the appellant.

LIEGHLEY, J., concurs. MORGAN, J., dissents.