
    No. 22
    HARRINGTON v. FRISCH
    Ohio Appeals, 9th Dist., Summit County
    No. 702.
    Decided March 1, 1923
    480. EVIDENCE — Verdict against owner of truck left by driver at other than usual place, reversed on weight of evidence though scintilla rule properly submitted to jury.
    Attorneys — Wilcox, Berk, Coble & Berk, Akron, for Harrington; Sheck, Lahrmer, Stevens & Harley, Akron, for Frisch.
   FUNK, P. J.

Epitomized Opinion

First Publication of this Opinion

This action was brought in Summit Common Pleas and the parties to it were in the inverse to their appearance above, Amelia Frisch being the plaintiff and M. E. Harrington, doing business as the “Falls Ice Co., the defendant, and reference to them herein as plaintiff and defendant, is to them in the trial court.

Harrington’s truck was standing after nightfall without lights in the road at Stow Corners. Plaintiff’s automobile struck the truck and plaintiff was injured. Miller, Harrington’s driver of the truck, had finished work for the day and then had driven to Stow Corners, a place where he had never driven the truck before, and where defendant company did not customarily do business.

The only testimony offered by plaintiff to show that Miller was on an errand for his employer was the answer of Miller to the question as to what if anything he did after he finished work, as follows: “Well, I went out and tried to get this order.”

The testimony produced by defendants was that Miller, after he left the truck, went past the place of the man whom it was said he was going to see, without any attempt to see him, that he did not inform deferidant that the truck had broken down and that he disappeared for several days and on his return was arrested by a policeman to whom he said he was “boozed” and was hunting “booze” when the truck broke down. In the Common Pleas there was a verdict and judgment for plaintiff. Defendant prosecuted .error. The Court of Appeals held:

. Under the scintilla rule the trial court properly left it to the jury to say whether Miller was acting within the scope of his employment at the time he left the truck. But this court is of the opinion that the verdict of the jury was clearly and manifestly against the weight of .the evidence on that point. Judg-men of the Common Pleas reversed.  