
    The Dayton Biscuit Co. v. Aerni.
    (Decided March 16, 1931.)
    
      Messrs. Howell, Roberts S Duncan, for plaintiff in error.
    
      Mr. J. B. Oviatt, for defendant in error.
   Lemert, J.

This action was brought by Martha Aerni against George Moore and the Dayton Biscuit Company, on account of personal injuries received by plaintiff in an automobile accident which happened on November 2, 1928, when there was a collision between two automobiles, one driven by George Moore, in which plaintiff was riding, and one driven by Lester Snyder, a salesman for the Dayton Biscuit Company. The collision of the two cars occurred at the intersection of the state highway known as route 51, which runs north and south, and the national highway known as route 40, which runs east and west. This intersection is about eighteen miles northwest of Dayton, Ohio. The plaintiff recovered a judgment against the Dayton Biscuit Company, alone, for the sum of $22,500, and it was to reverse the judgment entered upon this verdict that this proceeding in error was instituted.

As a background for a proper decision of this case we will briefly cite some of the pertinent facts as shown by the record before us.

The record discloses that the car in which the plaintiff was riding was operated by defendant George Moore. The front seat of said automobile was occupied by Mr. and Mrs. Moore. Mr. Moore was driving, and the rear seat was occupied by the plaintiff, Martha Aerni, and two other ladies. The party was on its way to Oxford, Ohio, to attend a college function. The driver, Moore, was making his first trip over the road and was unaccustomed to the surroundings and unaware of the importance of the particular intersection where the accident occurred. However, the record shows that he was driving very slowly, and, while he did not stop at the intersection in obedience to the stop signs which were at each of the four corners, he proceeded slowly across the intersection. When they were in the center of the intersection, the occupants of the Moore car saw the Chevrolet coupe coming at a very rapid rate into the intersection. Moore attempted to hasten to complete the crossing of the intersection, and thus escape the on-coming Chevrolet coupé, but he only succeeded in getting his car in such position that the Chevrolet coupó driven by Lester Snyder, as agent of defendant company, struck the rear portion of his Studebaker sedan at a spot next to where Mrs. Aerni was sitting, on the right side of the rear seat. The force of the collision was so great that the Studebaker car was turned violently around and pushed backwards down the pavement a distance of 75 feet, where it overturned into a ditch. Mrs. Aerni sustained very serious injuries, and at the trial of the case it was shown that she was crippled for life. Her injuries were so serious that there was no contest in the trial of the case in the court below as to the extent or nature of the injuries she claimed to have suffered.

Lester Snyder, the agent of the Dayton Biscuit Company, was driving his own car, a Chevrolet eoupé, and he was on his way to Dayton where the office of the defendant, the Dayton Biscuit Company, was located, and where his own home was located.

We gather from the record before us that • the route over which the driver, Snyder, was operating his car, was one that he had been covering for a period of more than a year, and the intersection where the accident occurred was known to be dangerous by Snyder, as appeared from his testimony set forth in the record.

The record before us discloses that at the trial of this cause in the court below, Snyder, the driver of the car for the Dayton Biscuit Company, did not appear at the time of trial, and none of the officers of the corporation appeared to throw any further light upon the relations of Snyder and the Company, but the case was submitted entirely upon the evidence offered by the plaintiff, which included the depositions of Snyder and the officers of the defendant company, which depositions were taken at the instance of plaintiff.

The question of negligence of Snyder, the salesman for the Dayton Biscuit Company, is not involved in this case. In other words, the weight of the evidence on this subject is not involved. Neither are the injuries complained of by Mrs. Aerni in question, nor is the claim made that the amount of the verdict is excessive; and, further, no question of contributory negligence is involved, so that the alleged errors as presented to us by brief and in oral argument are narrowed down to (1) the trial court erred in refusing to direct a verdict for the reason that there was no proof of agency made; (2) error in the court’s charge; and (3) the court’s refusal to charge.

As to the first proposition, whether Snyder was the agent of the Dayton Biscuit Company, and whether he was engaged in his master’s business at the time of the collision, the record before us discloses that Snyder had a fixed program established by his employer in connection with his duties to- his employer which did not contemplate the termination of his relations with the company when he made his last call on a customer. It is to be observed that the place where this accident occurred was within Snyder’s territory. It was on the road that he took in visiting his trade on the day the accident occurred. The accident occurred within a very short distance of the place of business of one of Snyder’s customers. Snyder had visited this customer only a short time before, and was on his way back to Dayton at the end of his week’s work, and it is to be noted that he was taking the shortest route to Dayton; and it is further to be observed that Snyder was paid for his mileage on such trip at this particular time at the rate of five cents per mile by the defendant company.

The evidence disclosed that Snyder was carrying with him at the time of the collision samples which belonged to the company, advertising matter which belonged to the company, and money which he had collected that day on his trip, and at the time of the happening of this accident it was a one-day trip and he was then on his way to turn over to the company the money and orders which he had taken that day, so that, as to the question of agency, and whether or not there was any evidence which tended to prove or establish that Snyder was acting within the scope of his employment at the time of the collision, we gather from the record, and believe, in view of the admissions of defendant company’s officers, which are uncontradicted, that as a matter of law Snyder was acting within the scope of his employment at the time of the collision.

As cases well in point upon the law governing facts such as hereinbefore recited, we refer to Auer v. Sinclair Refining Co., 103 N. J. Law, 372, 137 A., 555, 54 A. L. R., 623; Brown v. Montgomery Ward & Co., 104 Cal. App., 679, 286 P., 474; Snodgrass, Admx., v. Cleveland Co-Operative Coal Co., 31 Ohio App., 470, 167 N. E., 493.

With reference to the second and third charges of error they may be and will be considered together. We have carefully considered the charge of the court in this case, keeping in mind the particular part of the charge that counsel for plaintiff in error has singled out, claiming the same to be error. We find from the record that the court cleared up any possible question there could be about the part of the charge complained of, when he said: “If you find under the instructions that the court has heretofore given you, that either of the defendants or both were guilty of negligence that was the proximate cause of the injury, you will then determine the amount of damages that should be awarded the plaintiff from either defendant or both defendants in this case.” And, again, further along in the record, the court said: “In case you find that defendant, George Moore, was guilty of negligence that contributed to the proximate cause of the injury, and also find that Snyder, the driver of the Chevrolet eoupé, was engaged in the business of the defendant, The Dayton Biscuit Co., at the time, and that he was negligent and his negligence contributed to the proximate cause of the injury.” Then, following that, the court said: “In case that you find that Moore was negligent as the court has instructed you heretofore as to negligence, and his negligence was the proximate cause of the injuries, and if you also find further that Snyder, the driver of the Chevrolet car, was not engaged in the business of The Dayton Biscuit Co., or if you find that he was, that he was not negligent. ’ ’ Further on in the record the court explains to the jury the form of verdict to be used in the event they find only against the Dayton Biscuit Company. The court says: “There will be one form of verdict that you should return in the event that you find that Snyder, the driver of the Chevrolet coupé, was engaged in the business of The Dayton Biscuit Co., and that he was negligent and find that Moore was not.”

We find and believe that, taking this charge as a whole, and not piecemeal, as counsel for plaintiff in error have done, there can be no question that the court gave the jury a clear and correct statement of the law. It has been repeatedly held that the charge must be considered as a whole. Ochsner, Admr., v. Cincinnati Traction Co., 107 Ohio St., 33, 140 N. E., 644. When a statement might mislead the jury if considered alone, but not if considered with the charge as a whole, there is no prejudicial error. Koon v. State, 30 Ohio App., 379, 165 N. E., 98.

It is to be noted that the paragraph which counsel for plaintiff in error have singled out has relation to a situation in which both of the defendants are to be held liable. There is nothing in the paragraph which counsel complained of which gives the jury a formula by which the Dayton Biscuit Company would alone be held where its negligence was not a proximate cause of the injury. The paragraph complained of does furnish a formula for finding against both defendants, and what the court attempted to say was that the fact- that one of the defendants was more negligent than the other would not interfere with finding against both of them under circumstances as outlined by the court. Therefore, if there was an erroneous statement of law, as claimed by counsel for plaintiff in error, it is immaterial in this case, because it has no application, except to a situation where the jury found against both defendants.

We believe the court below did furnish the jury a guide concerning which there is and can be no complaint, to use in the event they found only against the Dayton Biscuit Company. We believe that, in view of the facts that no interrogatories were submitted to the jury and a general verdict was returned, counsel cannot complain about a portion of the charge which defined what the requirements were in order to hold both defendants when the court has charged correctly as to the requirements in order to find the Dayton Biscuit Company alone liable, and for this reason we think this comes within the so-called two-issue rule as laid down in Ochsner, Admr., v. Cincinnati Traction Co., 107 Ohio St., 33, 140 N. E., 644. So keeping in mind that the jury in this case found in favor of defendant Moore, and against defendant the Dayton Biscuit Company, it must follow that, if the alleged erroneous statement was made by the court below, as claimed by plaintiff in error, the same is immaterial for the reason that it applies to a situation which the jury found did not exist, for which reason the paragraph complained of did not figure in the verdict rendered; but that part of the charge which the jury found applicable to the situation, and which furnished the basis of the verdict against the defendant Dayton Biscuit Company alone, was correctly stated, and, being a general verdict and no interrogatories being submitted, it furnished no basis for a claim of error.

Therefore, from a careful examination of the whole record submitted in this case, we fail to find any error therein prejudicial to the rights of plaintiff in error, and it therefore follows that the judgment and finding of the court below will be, and the same hereby is, affirmed.

Judgment affirmed.

Sherick, P. J., and Montgomery, J., concur.

Judges of the Seventh Appellate District sitting by designation in the Eighth Appellate District.  