
    The Great Atlantic & Pacific Tea Co. v. Davis.
    (Decided February 11, 1929.)
    
      
      Messrs. Squire, Sanders & Dempsey, for plaintiff in error.
    
      Mr. L. E. Appleton, for defendant in error.
   Sullivan, J.

This cause is here on error from the common pleas court of Cuyahoga county, wherein a judgment against plaintiff in error, the Great Atlantic & Pacific Tea Company, a corporation, was pronounced on a verdict of the jury after full trial, in favor of De Anna Davis, the' defendant in error, who was plaintiff below.

On March 1, 1927, the plaintiff and her son, about 17 years of age, entered the store of the defendant for the purpose of making some purchases, and included in the items was an order for potatoes, and, the kind and quality which plaintiff desired not being in the main storeroom, the manager, or clerk then in full charge of the company’s store, requested the boy, according to certain credible evidence in the case, to get the sort of potatoes which his mother wanted, which necessitated the opening of a trapdoor in the floor, immediately to the rear of where the woman was standing at the counter, and a descent into the cellar or basement to procure the commodity required. Instead of closing the door, it remained open, and the plaintiff who was standing but a few feet from the aperture, as she was changing her location, fell through the trapdoor and received the injuries for which the verdict was given.

There is a conflict in the evidence, but under the authorities of the Supreme Court, and of our own decisions, there is credible evidence in the record to support the verdict so far as the weight of the evidence is concerned, and a reviewing court has no power, except as a matter of law, to reverse the judgment of the jury upon the facts, providing that upon all essential elements there is substantive evidence to support the verdict, and it is immaterial what the views of the reviewing court may be if this status in the record exists, and this situation is apparent from the record. However, one of the assignments of error is that under the record the clerk or manager had no authority to bind the company with respect to the order, request, or suggestion, whichever it may be, to the son to go to the basement to meet the requirements of the mother as to her purchase.

It is argued that the record upon this point is insufficient to make the company liable, because there is no application of the doctrine applying to master and servant, or, to put it another way, to the principle of respondeat superior, and many authorities are quoted by learned counsel for defendant below, to support this contention; but it must not be forgotten that there is at least some substantive evidence in the record tending to show that the son in question had previously worked at the store and had performed acts of a similar nature for the clerk or manager, and that he therefore could be characterized in law as a servant and employee of the defendant.

Keeping in mind that the former employment by the manager of the son on previous occasions remained unchallenged, it follows as a circumstance and inference that the clerk was acting within the scope of his authority, especially when we consider that to apply a different theory would be to establish a doctrine that would approve of the authority exercised in the case at bar by the manager, to the detriment and danger of a patron and customer of the store, who might be injured as a result of the act imposed upon the third person by one who is unquestionably in sole authority upon the premises.

It is apparent from the record that the open hatchway was in plain view of the manager, and from this fact in the record it is unreasonable to conclude that responsibility does not attach itself directly to the manager himself, independent of the order that was given to the son of the customer to open the trapdoor in the floor.

Our Supreme Court, under circumstances similar to those of the case at bar, in the case of Schnable, a Minor, v. Cleveland, Chicago & St. Louis Rd. Co., 102 Ohio St., 97, 130 N. E., 510, has laid down this doctrine. We think it applicable to the instant case, and we quote from the third paragraph of the syllabus as follows: “When the operator and agent in charge of a railroad station requests the superintendent to employ a helper, and is refused, but is subsequently given permission to take a young man into the office to learn telegraphy and to assist in the performance of the duties in and about the office, who does in fact so assist under the orders and direction of such agent, the relation of master and servant is thereby created and the doctrine of respondeat superior applies.”

It is further claimed that the court below erred in giving the following charge to the jury: “Now, with respect to the legal phases and aspects that are presented by the evidence, there are certain questions of fact for you to determine that are presented here as issues, and I charge you upon the law applicable thereto, that where a servant has actual charge and control and supplies the will or the motive for an act, on having a third person to do an act for him, if there was negligence upon the part of the third person, it is chargeable as negligence of the servant; that is, if he was in actual control, and directing, and it was in such immediate vicinity of his activity and control in the situation. Now, that relates to the boy opening this door, or trapdoor as it were, and the legal consequence attendant thereto. Now, what does the evidence reveal to you with respect to this servant or manager of the store having the immediate control over the store and the movements and the activities, if any, of this boy opening the door? What does the evidence disclose to you as to whether there was anything said by the servant of the company, the manager of the store, to the boy, to open the door? There is a sharp conflict in the evidence on that phase of the question and other phases and aspects of the case.”

An analysis of this charge, in our judgment, is in line in practical effect with the doctrine laid down in Schnable v. Railroad Co., supra.

We have examined Mangan v. Foley, 33 Mo. App., 250; Haluptzok v. Great Northern Rd. Co., 55 Minn., 446, 448, 57 N. W., 144, 26 L. R. A., 739; White v. Levi & Co., 137 Ga., 269, 73 S. E., 376; Hills v. Strong, Admr., 132 Ill. App., 174, and other authorities cited by counsel for plaintiff in error, but it is our unanimous judgment that the doctrine in Ohio applicable to the facts in the record is laid down in Schnable v. Railroad Co., supra, and governs this case.

Thus holding, the judgment of the common pleas court is hereby affirmed.

Judgment affirmed.

Vickery, P. J., and Levine, J., concur.  