
    Telling Belle Vernon Co. v. Krenz.
    
      (Decided September 17, 1928.)
    
      
      Messrs. Davis, Young <& Vrooman, for plaintiff in error.
    
      Mr. J. A. Cline, Mr. E. T. Carney, and Mr. B. E. Boehm, for defendant in error.
   Sullivan,, P. J.

This cause is here on error to the court of common pleas of Cuyahoga county, wherein a verdict of $25,000 was rendered by the jury in favor of Anna Krenz against the Telling Belle Vernon Company, and cut down to $20,000. From the allegations in the pleadings it appears that the plaintiff below, Anna Krenz, was riding with her husband in his own automobile,' driven by himself, and at all times under his control and guidance, and that, while so doing, the automobile in which they were riding collided with a truck of the Telling Belle Vernon Company on the highway leading from Cleveland to Willoughby, the cause of which collision is alleged to be that, after due warning that he was about to pass given by Louis Krenz to the driver of the Telling Belle Vernon truck ahead of him, going in the same direction, the truck turned to the left to enter a dooryard to deliver goods, without any warning, the result of which was the crash of the two vehicles and the consequent serious injuries to the wife, Anna Krenz, who accompanied her husband, as above set forth.

The issues of fact, we find, were submitted to the jury, and the record is clear that there was credible evidence to support a verdict, notwithstanding that there was a conflict in regard to these issues of fact. A reviewing court cannot disturb a verdict merely because there is a conflict, because it must appear that the judgment is clearly and manifestly against the weight of the evidence, and upon examination we find that this verdict is not so characterized. A reviewing court has no right to invade the province of the jury as to the facts, and hence we end the discussion of that question. Painesville Utopia Theatre Co. v. Lautermilch, 118 Ohio St., 167, 160 N. E., 683.

It is claimed that the verdict is excessive, and had its basis in passion and prejudice. It appears that the 'judgment Was cut down to the extent of $5,000, by agreement, but it does not appear that it was done because there were concessions that the verdict was based upon passion or prejudice; neither does it appear that it was done because the court adjudged that the verdict was excessive because of passion and prejudice. Hence we look at the extent of the injuries to assist us in ascertaining whether the verdict is so excessive that in and of itself it amounts to passion and prejudice, and we have come to the conclusion that, according to credible evidence in the record, the injuries Were of such a serious and permanent nature that the verdict as reduced by the court does not seem unwarranted or unreasonable according to credible evidence found in the record, although there is evidence of a contrary nature which leaves the facts in issue. If there is credible evidence, that is all that is necessary, and a reviewing court may not disturb the verdict in the face of that fact.

There is evidence tending to show that the injury to the nervous system is of a permanent nature, and that the eyesight is seriously affected, and, in addition thereto, there are facial injuries in the way of cuts and sears that distort the countenance to such extent as to seriously affect the nervous system and the general well being of plaintiff below.

There is evidence tending to show that prior to the injuries the plaintiff was a happy and healthy woman, and that since the injuries she is on the road to becoming a nervous wreck. It appears that because of the injury there is a flow of tears continually from one of the eyes to such an extent that it is partially blinding. Therefore it does not seem to us that the judgment of $20,000, under credible evidence in the record, is excessive to the point that it indicates passion and prejudice, and for this reason we think this assignment of error is not well founded.

The wife, it appears from the testimony, had no knowledge of the operation of the machine, and she was not in any manner undertaking to guide or control the driving of the automobile by her husband. She went with her husband involuntarily, and assumed the same attitude on the trip, as was natural for a person who had no knowledge of driving and could not drive herself. These circumstances left as a naked fact the mere relationship of husband and wife upon which to base a joint enterprise, and this fact is not sufficient in and of itself to give foundation to such a claim, as was held in Chesapeake & Ohio Northern Ry. Co. v. Barger, 10 Ohio App., 443. That case holds that simply because of the conjugal relationship a husband has no authority to act for the wife in any manner.

Now it is charged that the court committed error in not instructing the jury under this state of facts with respect to a joint enterprise.

In Moore v. Almendinger, 15 Ohio App., 503, the court overruled a motion to certify where this distinct question was raised, and in an examination of that case it becomes clear that, unless there is credible evidence in the record to show a joint enterprise, it is reversible error on the part of the court to charge that doctrine of law!. In fact, the court goes so far as to hold that, even if there is a joint enterprise, there must be such a connection between the joint enterprise and the driving of the automobile as to make any negligence in the driving directly the outgrowth of the joint enterprise.

In this case, even if there was a joint enterprise, the facts as they relate to the conduct of plaintiff below are in no manner derivable from, or connected with, the joint enterprise, even if the mere conjugal relationship indicated a joint enterprise.

Under the authority just quoted, the act of the plaintiff in the instant case must have been of such a nature that it was closely connected with the joint enterprise. It is clear from the record that there is not even a remote connection between a semblance of joint enterprise and any conduct on the part of plaintiff below. In Moore v. Almendinger, 15 Ohio App., 503, the judgment was reversed and a new1, trial granted for error in charging the matter of joint enterprise and in restricting the right of recovery to the negligence of defendant only. Before negligence can be imputed under the authorities in Ohio, as laid down in East Ohio Gas Co. v. O'Hara, 17 Ohio App., 352, paragraph 3 of the syllabus, the parties engaged must be principals, each having control of the agents employed for the common purpose, and the very relationship itself between them must be such that logically the negligence of the one is imputable to the other.

On the assignment of error that there was contributory negligence on the part of the plaintiff herself, such is to be determined from a review of the evidence in the case with regard to the plaintiff’s conduct, and it is our judgment that there is no evidence of contributory negligence on her part because under the authorities cited she and her husband were not engaged in a joint enterprise; and, simply because she was a wife and rode with her husband, the plaintiff is not barred from recovery merely because she remained quiet as an occupant of the machine, while her husband did the driving, even though he might have been violating an ordinance in the operation of the machine, because, in the absence of any right, necessity, or responsibility to control the machine, the wife cannot be held responsible for the negligence of her husband where she herself is a silent and inoperative agent.

We can only repeat what was said in Cleveland Ry. Co, v. Heller, 15 Ohio App., 346, that it is not necessary for an occupant of a machine owned and driven by another to keep remonstrating or interfering with the driver, or instructing the driver as to how the machine shall be operated, for it is obvious that such interference more often would result in injury than in its prevention, especially so in the instant case, where the wife herself w'as unacquainted with the operation of an automobile.

Whatever may be said of interference with a driver on the part of the occupant of a machine, who ■ is himself an expert, certainly it cannot be said in general that any interference whatsoever is conducive to safety in. automobile transportation except in dire emergencies; that is, on the part of an occupant of an automobile who professedly is entirely ignorant of its operation and is an utter stranger to the art of driving an automobile.

Another assignment of error is that the bill of exceptions was signed, sealed, and allowed by the trial court subsequent to the limit of time authorized by law.

It appears from the record that a bill of exceptions wias presented in time to the trial judge. Objections thereto were filed within the time, but it appears that the corrections and changes were not made until after the time had expired, and then and thereupon the court signed the bill of exceptions, and the cause is here upon that document.

It is claimed by plaintiff in error that the bill of exceptions as originally presented before the time had expired was the true bill of exceptions. That-may be, but, inasmuch as it is the trial court itself that has the exclusive right to say whether the bill of exceptions is correct or inaccurate, it follows that its truth or falsity lies wjith the trial court, and the trial court alone, and, if the trial court refuses to sign the true bill of exceptions, or to correct the same, mandamus will lie to compel it, but it will not lie to compel a court to sign, seal, and allow what it considers an incorrect bill of exceptions. The necessity and nature of the ease repose this power in the trial court. Otherwise chaos and confusion would be the result, for the reason that opposing counsel might never agree as to what was correct or incorrect in the bill of exceptions.

The trial court is held responsible for the signing and sealing and allowing of the bill of exceptions, bnt cannot be compelled to sign, seal, and allow unless in the judgment of the court the bill of exceptions is correct. The defendant in error filed no motion to dismiss the bill of exceptions, and the case has been argued upon the only bill of exceptions before the court, which is the one presented to the court before expiration of the limit of time, but not signed by him until afterwards. Both counsel, in practical effect, have treated this bill of exceptions as the one before the court, and it is a presumptive fact from the record that the bill of exceptions was filed by the party making the complaint in error proceedings. Hence, in the absence of a motion we treat the bill of exceptions as a proper one, because the presumption is that it was corrected by the court to correspond to the facts after its presentation before the expiration of the time limit.

The law declares that the bill of exceptions signed, sealed, and allowed is the correct one, and, while counsel ably argue in an exhaustive brief about the substantial difference between the bill of exceptions as presented and allowed, yet we are bound to follow Hie law and consider the one signed, sealed, and allowed by the court to be the correct one, and it is our judgment that there is no other bill of exceptions of which the court may take cognizance. This court has repeatedly held that failure to file a bill of exceptions is not in and of itself a deprivation of jurisdiction, because, if any error appears in any other form in any other part of the record, the court may take cognizance of it and disregard the bill of exceptions entirely. In our judgment, by reason of the act of the parties and the record in the case, we treat the bill of exceptions that was signed, sealed, and allowed as a proper instrument for review.

We have examined the other assignments of error, and we do not think they are prejudicial in their nature or effect.

Holding these views, the judgment of the lower court is hereby affirmed.

Judgment affirmed.

Viokery and Levine, JJ., concur.  