
    Lloyd v. The General Tire & Rubber Co.
    
      Directed verdict—Motion by defendant at close of plaintiff’s case—Trial judge cannot weigh evidence in deciding motion or consider evidence disproving existence of fact necessary to plaintiff’s case—Question for jury—Whether employe acting for employer when committing assault and battery.
    
    Where, at the close of plaintiff’s case the defendant moves for a directed verdict in his favor because of lack of proof of a material fact, the trial judge in passing on such motion cannot properly consider evidence tending to disprove the existence of such fact, nor weigh the evidence; if there is any evidence tending to establish the existence of such fact, no matter how much evidence there is to the contrary, the trial judge is bound to submit the question to the jury.
    (Decided March 8, 1927.)
    Error: Court of Appeals for Summit county.
    
      Mr. Carl M. Myers, for plaintiff in error.
    
      Mr. A. F. O’Neil and Mr. 8. G. Colopy, for defendant in error.
   Washburn, P. J.

In this action plaintiff sued the defendant, the General Tire & Rubber Company, to recover damages for an- assault and battery committed upon him by an employe of defendant.- At the close of plaintiff’s evidence, the trial judge directed a verdict for the defendant, and the correctness of that ruling is the question to be determined in this error proceeding.

When defendant made such motion, the trial judge was not called upon or permitted to iveigh the evidence and determine whether said employe was acting for the defendant at the time of such assault. The trial judge was not called upon or permitted to take into consideration evidence which tended to prove that such employe was not acting for the defendant. The only thing the judge was called upon or permitted to decide was whether there was any evidence tending to prove that said employe was acting for the defendant, and if there was any such evidence, no matter how slight, or how much evidence there was to the contrary, the trial judge was bound to submit the question to the jury.

The record discloses that plaintiff, on behalf of his company, entered into a contract with the defendant to build a float for the defendant company, to be used by defendant for advertising purposes in a centennial parade in the city of Akron; that defendant paid to plaintiff, in advance, the sum of $250, to apply upon said contract; that said float was constructed and delivered to the defendant just a few minutes before the parade was to start; that before the defendant got the float into the parade it collapsed; and that the defendant immediately returned the float to the plaintiff.

The record further discloses that the employe of the defendant who committed the assault upon the plaintiff was in charge of the advertising department of the defendant; that on behalf of the defendant he negotiated said contract with the plaintiff; that he caused the defendant to pay to plaintiff the $250; that on behalf of defendant he planned said float, and represented the defendant in its dealings with the plaintiff during the construction of the float; that representing the defendant he received said float from the plaintiff, and representing the defendant he returned said float to the plaintiff, and that the defendant was not represented in any of said matters by any one, except said employe.

The record further discloses' that on the next working day after the float collapsed, whereby defendant was prevented from taking part in said parade and deprived of a chance to win the prize for which it intended to compete, said employe, before going to the plant of defendant, went to the office of plaintiff and there demanded that plaintiff deliver to him a check payable to the defendant company for said $250, or that plaintiff write a letter to the defendant company saying that he would repay said money, and upon plaintiff’s failure to comply with either of said requests said employe committed an assault and battery upon the plaintiff. There was some evidence tending to prove that said employe had in mind that the return of the money to the defendant would prevent the defendant from blaming him for the collapse of the float.

Now, in deciding the motion, the judge was bound to consider all of these facts as proven and to consider as established all reasonable inferences which a jury might draw therefrom. Such motion “concedes to the plaintiff everything that the jury could possibly find in his favor” (Ellis & Morton v. Ohio Life Ins. & Tr. Co., 4 Ohio St., at page 646, 64 Am. Dec., 610), and if such facts and such inferences tended to prove that such employe, at the time of said assault, was engaged in the business of the defendant and acting within the scope of his authority, the judge was bound to submit that question to the jury. We think there was some evidence tending to prove that said employe was engaged in the business of his master and acting within the scope of his authority, and that, therefore, the trial judge committed error in directing a verdict for the defendant.

We do not attempt to decide whether, at the time of the assault, such employe was or was not acting for the defendant; all that we decide is that inasmuch as there is some evidence on both sides of the question a jury and not a judge should weigh the evidence and determine the question.

It is claimed that a former decision of this court sustained the action of the trial judge in directing a verdict for the defendant; but that case did not present the question that is presented in this case. There the finding of a jury was under review, while in this case the taking of the case from the jury is involved. In that ease the jury found that when a certain employe committed an assault and battery he was not acting for his master and within the scope of his employment, and we held that such finding was not manifestly against the weight of the evidence. We did not find that there was no evidence tending to prove such fact, as did the trial judge in the present case. That case is no authority for the action of the trial judge in this case.

For error in directing a verdict and entering judgment for the defendant, the judgment is re versed and the cause remanded.

Judgment reversed cmd cause remanded.

Funk and Pardee, JJ., concur.  