
    The Victor Tea Co. v. Walsh.
    (Decided March 16, 1931.)
    
      
      Mr. Richard J. Moriarty, for plaintiff in error.
    
      Mr. John H. McNeal, for defendant in error.
   Lemert, J.

This case originated in the municipal court of Cleveland, and after a trial in that court to a jury a verdict in the sum of $800 was returned in favor of the plaintiff, James Walsh. A motion for a new trial was overruled and judgment entered upon the verdict, and thereafter defendant below, the Victor Tea Company, filed a petition in error in the Court of Appeals of Cuyahoga county, Ohio.

The plaintiff in the court below brought his action for damages to his automobile. The plaintiff was not in his automobile at the time the accident happened, and the automobile was not driven by an employee or agent of the plaintiff at the time the accident happened, but was driven and operated by one Earl C. Bowles, who was not an employee or agent of the plaintiff, but had borrowed the car, and was a bailee thereof, and was using the same on a trip to see his aunt at the time the automobile accident happened.

The petition alleged that the plaintiff, James Walsh, was the owner of said automobile, and that the defendant below was guilty of negligence in the following respects:

1. Defendant company negligently failed to turn their automobile to the right upon the giving of the signal, as aforesaid, by the driver of the automobile of the plaintiff herein, contrary to the provisions of Section 6310-19 of the statutes of the state of Ohio, in such cases made and provided.

2. Defendant company negligently failed to give any signal or warning of their intention to make a left-hand turning movement, shortly before the happening of said collision, as aforesaid, contrary to the provisions of Section 6310-22 of the statutes of the state of Ohio, in such cases made and provided.

3. Defendant company negligently failed to make sure that the left-hand turning movement of said truck could be made in safety before changing their course shortly before the happening of said collision as aforesaid, contrary to the provisions of Section 6310-22 of the statutes of the state of Ohio, in such cases made and provided.

4. Defendant carelessly and negligently failed and neglected to stop said automobile truck, or abate the speed thereof, or divert the course thereof, in time to avoid said collision, all of which, in the exercise of ordinary care, defendant could and should have done.

5. Defendant carelessly and negligently failed and neglected to have and keep said automobile truck under proper control at the time and place aforesaid.

6. Defendant failed to maintain a lookout to observe and ascertain the presence and position of the said automobile owned by the plaintiff, which automobile was passing said automobile truck as aforesaid, before the happening of said collision as aforesaid, all of which, in the exercise of ordinary care, defendant could and should have done.

Numerous grounds of error are alleged in the petition, but in the oral argument and briefs in this case two grounds of error are urged, to wit, first, that the verdict is contrary to law, and, second, that the verdict is contrary to the weight of the evidence.

An examination of the record discloses that there was a dispute and conflict in the evidence and testimony as to the happening of the accident. The weight of the evidence and the credibility of the witnesses were for the jury to consider and decide upon. The record discloses that there was credible evidence introduced by the plaintiff justifying the verdict of the jury. It is the law of this state that mere conflict in testimony precludes a reviewing court from reversing a judgment. No matter what opinion a court of appeals may have, it will not reverse a judgment for the reason that it is against the manifest weight of the evidence, unless on the whole record such clearly and manifestly appears to be the case. The record must show as a matter of law circumstances or facts determinative of the question whether the judgment is against the weight of the evidence.

Whenever from conflicting evidence of the same witness or of different witnesses it becomes necessary to weigh such conflicting evidence to determine wherein the probable truth lies, or from a combination of circumstances determine an ultimate fact, upon the determination of which different minds might reasonably arrive at different conclusions, it-is the province of the jury to perform that function. It is reversible error for the court to invade that province of the jury. So that, upon the first claimed ground of error, we find the same is not well taken.

A review of the record before us reveals that the plaintiff, the owner of the automobile, was not in the car at the time the accident happened. The automobile was in the sole charge and control of said bailee, who was on his own personal errand, mission, and business, on a visit to Ms aunt. The said bailee asked and invited Mrs. Walsh, the wife of the plaintiff, to go along for a ride, and Mrs. Walsh, the wife of the plaintiff, was in the automobile at the time the accident happened. She did not have any supervision, direction, charge, or control over the movements of said automobile, and by reason of the foregoing there was no joint enterprise existing as between the plaintiff, James Walsh, the owner of the car, and said bailee, the driver of the car; and there was no joint enterprise between Mrs. Walsh, the wife of the plaintiff, and said' bailee, as to the use and operation of said automobile. The negligence, if any, of Bowles, the bailee, was not chargeable to or against the owner, James Walsh, the plaintiff, and said James Walsh was not chargeable with any negligence, if any there was, on the part of said bailee, or on the part of his wife, Mrs. Walsh, who was invited by said bailee, Bowles, to take a ride with him on his individual trip to see and visit his aunt.

The question whether or not the negligence of the bailee may prevent recovery by the owner of property is very nicely treated in Levis v. McGerty, 8 Ohio Law Abs., 281, and also in Pheils v. City of Toledo, 8 Ohio Law Abs., 328, and again in Gfell v. Jefferson Hardware Co., 10 Ohio App., 427, wherein it was held that the "owner of property in the hands of a bailee may recover from a third person damages caused to such property by the negligence of the third person, even though the bailee be guilty of contributory negligence in tbe handling of the property, and even if the bailee, in an action brought by him, might be met with the defense of contributory negligence. ’ ’

The question raised by the record in this case does not present a case of joint enterprise, and the case of Puterbaugh v. Reasor, decided in 9 Ohio State, at page 484, is not applicable to the case at bar.

A further claim is made in oral argument by the plaintiff in error that the court refused to specifically charge on certain matters of negligence after the general charge had been given. We find from the record before us that there was but one issue in this case, and that was whether or not defendant below was guilty of any negligence which was the proximate cause of the collision and the resulting damage to the plaintiff, the owner of the automobile.

So it therefore follows that we find and hold that there was no error in the court below in refusing to give the specific charges at the end of or after the general charge.

We, therefore, find and hold that there is no error in this case prejudicial to the rights of the plaintiff in error, and it follows that the judgment of the court below will be affirmed.

Judgment affirmed.

Sherick and Montgomery, JJ., concur.

Judges of the Fifth Appellate District, sitting by designation in the Eighth Appellate District.  