
    No. 396
    LLOYD v. GENERAL TIRE & RUBBER CO.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1195.
    Decided March 8, 1927
    396. DIRECTED VERDICT — 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.
    First Publication of this Opinion
    Attorneys — Carl N. Myers for Lloyd; A. F. O’Neil and S. C. Golopy, for Company; all of Akron.
   WASHBURN, P. J.

Abraham Lloyd sued the General Tire & Rubber Co. in the Summit Common Pleas to recover damages for assault and battery committed upon him by an employee of the Company.

At the close of Lloyd’s evidence, the trial judge directed a verdict for the Company, and the correctness of that ruling is the question to be determined in this error proceeding.

The Court of Appeals held:

1. When the company made such a motion, the trial judge was not called upon nor permitted to weigh the evidence and determine whether such employee was acting in the scope of his employment, the only thing he was to do was to decide whether there was any evidence tending to prove that employee was acting for the Company.

2. Evidence tended to show that Lloyd was to build a parade float; that upon delivery it collapsed; that the Company had paid a deposit; that the employee in question was advertising manager of the company; that the company was deprived of taking part in the parade, that the next day the employee went to Lloyd and demanded a refund of the deposit, and that upon refusal of Lloyd to comply, the assault and battery was committed.

3. In deciding said motion, the judge was bound to consider all of these facts so1 proven, and to consider as established all reasonable inferences which a jury might draw therefrom; such motion concedes to plaintiff every thing that the jury could possibly find in his favor. Ellis & Morton v. Ohio L. Ins. Co., 4 OS. at pg. 647.

4. We do not attempt to decide whether, at the time of the assault, such employee was or was not acting- for the Company; all that we decided is that there being some evidence on both sides of the question, a jury and not a judge should weigh the evidence and determine the question.

Judgment reversed.

(Funk & Pardee, JJ., concur.)  