
    Armour & Co. et al. v. Yoter.
    
      (Decided August 19, 1931.)
    
      Messrs. Addison S-Crooks, for plaintiffs in error.
    
      Mr. Carl H. Valentine, for defendant in error.
   Levine, J.,

of the Eighth Appellate District, sitting by designation in the Second Appellate District.

This case comes into the Court of Appeals on a petition in error setting forth various assignments of error and praying that the judgment of the common pleas court in favor of defendant in error be reversed.

The case was tried three times in the common pleas court. The third trial, which is the present action, was heard at the September term, 1930, and resulted in a verdict in favor of the plaintiff, Elmer E. Yoter, against both defendants in the sum of nine thousand dollars.

Elmer E. Yoter, defendant in error, brought an action against both plaintiffs in error, Armour & Company, a Maine corporation, and Armour & Company, a Kentucky corporation, who were the defendants in the trial court, for personal injuries claimed to have been sustained by him on the 28th day of September, 1926, in an accident which occurred on the National Highway, a short distance east of Reynoldsburg. The acts of negligence charged against both corporations are set forth in the following language: “Said defendants so carelessly and negligently operated said motor truck as to cause it to come to a complete stop in the direct line of the eastbound traffic in said road without making sure that such movement could be made in safety, without causing signals to be made of their intention in any way visible outside said motor truck, and in such a position that neither the front nor rear right wheel was within one foot of the right hand side of the improved portion of said road, and in such a way as to obstruct the free passage of said road and so as to cause plaintiff’s car to collide with it.”

In the brief of plaintiffs in error the above description of the negligence charged against the two corporations is subdivided into six specifications of negligence. In the charge by the trial court no such subdivision is employed, but, instead, the court looked upon the above statement in the petition setting forth the negligence of the corporations as one allegation. In this we believe the trial court was correct.

The gravamen of Elmer E. Yoter’s complaint is that the motortruck operated by the employees of plaintiffs in error came to a complete stop without making sure that this could be done safely, and without such employees causing signals to be made of their intention so to stop; and also that the motor-truck came to a complete stop in such position that neither the front nor rear right wheel was within one foot of the right-hand side of the improved portion of said road, and in such a way as to obstruct the free passage of said road and so as to cause plaintiff’s car to collide with it.

There are two sections of the General Code (110 Ohio Laws, 135) which bear upon the allegations of negligence found in the petition, as follows:

“6310-22. Drivers of vehicles before turning, stopping or changing their course shall make sure such movement can be made in safety and shall cause signals to be made of their intention in a way visible outside the vehicle.”
“6310-27. No vehicle shall stop on any road or highway, except with front and rear right wheels within one foot of the right hand side of the improved portion of the road, nor in any such way as to obstruct a free passage of the road; provided that nothing in this section shall be held to apply whenever a driver of a vehicle is compelled or permitted to stop by reason of other lawful regulations, or emergency. ’ ’

A perusal of the record discloses that there is evidence to sustain the allegations of the petition to the effect that the motortruck driven by the employee of plaintiffs in error was brought to a complete stop without making certain that the same could be made in safety and without causing signals to be made of his intention to so stop.

Plaintiffs in error urge that a presumption of negligenee on the part of defendant in error arose from the evidence presented in his behalf; that he was therefore required to produce sufficient evidence to meet or equalize the inference of said presumption of negligence and that he failed so to do. At the close of the plaintiff’s testimony, and again at the close of all the testimony, a motion was addressed to the court asking that a verdict be directed in favor of both defendants. It is claimed that if the plaintiff, at the close of his own evidence, had not sufficiently met the presumption of negligence arising therefrom, a mere scintilla of evidence was not sufficient to take his case to the jury; that the scintilla rule which compels the submission of the case to the jury is applicable only where no inference of negligence is to be drawn from plaintiff’s own testimony.

In this connection plaintiffs in error call the court’s attention to what they term the well-known physical fact. The driver of the motortruck stated that his motortruck had been parked off the traveled portion of the highway a sufficient length of time to adjust the canvas on the truck, and that his truck while standing still was parked with the right wheels on the berm of the highway, in broad daylight, and that there was no traffic to prevent plaintiff from driving around his car.

Plaintiff’s evidence is to the effect that the roadway was blocked and that the motortruck was brought to a complete stop somewhere near the center of the improved portion of the highway. The court’s attention is then directed to a fact appearing in the record, namely, that the motortruck was knocked and pushed a distance of twenty feet, and it is claimed that this physical fact demonstrates that the plaintiff was driving at an excessive rate of speed behind this truck. At this point it may be observed that the driver of the truck testified that the truck was pushed ten or twelve feet only.

Our attention is directed to what plaintiffs in error term the law of physics, namely, that momentum, which is the force acquired by a moving body, is determined by a multiplication of the speed and the weight of the body. Attention is called to another law of physics, namely, that a body at rest has no momentum, so that a lighter body to give momentum to another body at rest must strike it with sufficient velocity that the weight of the moving body multiplied by its speed will equal the weight of the standing body multiplied by its speed. In other words, the momentum of the moving body must initiate the momentum in the standing object. It is argued that with these physical laws, of which the court should take judicial notice, it would be impossible for a light-weight Nash sedan, about one-fourth or less of the weight of the motortruck, and after its momentum had been reduced by the application of the brakes and it had already skidded twenty feet, to give sufficient momentum to this truck four times the weight of the sedan to knock it a distance of twenty feet, with its brakes set, if the sedan was moving at no greater rate of speed than fifteen or twenty miles per hour. In other words, it is argued that the physical facts prove conclusively that plaintiff’s car was operated at an unreasonable and excessive rate of speed.

It must be kept in mind, however, that the plaintiff’s case, supported by evidence, proceeded upon the theory that the driver of the defendants ’ motor-truck brought the same to a complete stop while said motortruck was on the improved portion of the highway. The fact that the brakes of the motortruck were set was testified to by the driver of the motor-truck, and by no one else. The physical laws to which our attention is directed would have no application if the brakes of the motortruck were not set. The jury apparently disregarded the testimony of the driver of the motortruck to the effect that he was on the unimproved portion of the road, and having disregarded his version of the occurrence the jury was justified in disregarding his statement to the effect that the brakes of the motortruck were set. Since the jury adopted the version given by plaintiff, namely, that while on the improved portion of the highway the motortruck driven by the employee of the defendants was brought to a complete stop, and disregarded the version given by the driver of the motortruck, the finding of the jury in favor of plaintiff is not in any way contradicted by the physical laws alluded to, because if the brakes of the motor-truck were not set it would take but slight pressure from the rear to cause the motortruck to move a distance of twenty feet.

A great deal of space is devoted in the briefs of plaintiffs in error to a discussion of an alleged error in the general charge of the court. The court read to the jury Section 6310-27, General Code, part of which is as follows: “No vehicle shall stop on any road or highway, except with front and rear right wheels within one foot of the right hand side of the improved portion of the road * * V’

Following the reading of the law the court used this language: “Now the positive act in that section is the stopping with the right wheels — that is, the requirement is that the stopping shall not be done with the right wheels further away from the right hand side of the road than one foot, and the obstruction of the passage in that respect, that is to stop with the right wheels further than one foot from the side of the road, is negligence. ’ ’

It is contended by plaintiffs in error that under the wording of the statute a vehicle may be stopped on any road or highway within one foot of the right-hand side of the improved portion of the highway; that when the court stated that to stop a vehicle with the right wheel further than one foot from the side of the road is negligence prejudicial error was committed by the court in giving this charge, because it was the contention of the defendant that he did stop with his right wheels more than one foot from the traveled highway, and that he drove clear off of the highway so that his right front and rear wheels were more than a foot from the traveled portion of the highway; and that under the charge of the court this would constitute negligence on the part of the driver.

As plaintiffs in error interpret the charge of the court it is to the effect that a vehicle must stop on the traveled portion of the highway, or at least so close to the traveled portion of the highway that the right wheels are'not more than one foot from the traveled portion, and that if one drives off the traveled portion of the highway, and further than one foot away from the traveled portion of the highway, one is guilty of negligence as a matter of law.

Counsel for defendant in error contends that the legislative intent as expressed in Section 6310-27, General Code, supra, has to do with the stopping of the car on that part of the highway used for travel, namely, the improved portion of the highway; that one stopping -a car is obliged to get far enough to the right thát his front and rear wheels are not more than one foot distant to the left from the right-hand side of the improved portion of the road.

The language of the statute in our opinion is somewhat confusing. It would seem that the phrase “road or highway,” as used in said section, refers to the improved portion of the highway. The statute contemplates that one desiring to stop on said highway must move over until the front and rear right wheels of his vehicle are within one foot of the right-hand side of such improved portion of the highway.

There is no inhibition against stopping a vehicle on the unimproved portion of the highway. Tt will, however, be noted that the verdict of the jury was a general verdict; that no interrogatories were submitted to the jury to test the general verdict. For this reason, even if it be assumed that the court’s charge was erroneous in its interpretation of Section 6310-27, the jury might very well have based its finding of liability on the ground that the driver of plaintiffs in error’s motortruck while on an unimproved portion of the highway brought the motortruck to a complete stop without making it reasonably certain that the same could be done in safety and without having given a signal of his intention to do so.

Under the “two-issue rule” so often reiterated by the Supreme Court of Ohio, said error of the trial court, assuming that it was error, would not be a ground for disturbing the verdict, since the same was a general verdict and there were no interrogatories submitted to the jury in order to test said verdict.

Another important assignment of error is that there was error in rendering a verdict against both defendants. It is claimed that there are no facts in the record which tended to show that these two distinct corporations had joint control of the driver of the truck, nor any evidence tending to show that these joint defendants were engaged in a joint enterprise, and also that there was no evidence tending to show that they jointly owned the truck.

The amended petition alleged: ‘ ‘ That on or about the 28th day of September, 1926, plaintiff was traveling easterly on the National Pike in his own car, which was at the time driven by one Charles Simp-son, and-that he was traveling with him as a guest, and that the defendants at the time were the owners of a motortruck which they were at that time operating in the same direction and on the same road, and a short distance in front of plaintiff’s car, and that the defendants so carelessly and negligently operated said motor truck as to cause it to come to a complete, stop in the direct line of the east bound traffic of said road, etc., and so as to cause to make said car to collide with it. ’ ’

Did the defendants own the truck? Was the driver of the truck an agent of the defendants and acting within the scope, of his duty?

The record discloses that Toter’s counsel experienced great difficulty in eliciting information on that subject. The local manager, Mr. Dever, of Armour & Company, was called as a witness by plaintiff. He was served with a subpoena duces tecum, ordering bim to bring tbe documents and records having reference to tbe subject-matter under investigation into court. He claimed be did not bave any sueb documents and records, tbat be bad never seen any sueb, and tbat none were available. According to tbe statement of Mr. Dever, be was tbe local manager in charge of all tbe Armour & Company business in Central Ohio; tbat he knew only tbat lie worked for Armour & Company; tbat be bad no idea as to who they were beyond tbe fact tbat they were a corporation ; and whether they were a Maine corporation, a Kentucky corporation or a corporation under tbe laws of some other state, be did not know.

Mr. James F. Hurd, from tbe office of tbe Secretary of tbe State of Ohio, was called as a witness for tbe plaintiff. He brought into court tbe foreign corporation records marked as plaintiff’s exhibits one and two. He stated that tbe record showed but two corporations under the name of Armour & Company; tbat one of these was a foreign corporation, organized uhder tbe laws of tbe state of Maine, and tbe other a foreign corporation organized under tbe laws of tbe state of Kentucky; that both of said corporations bad been authorized to do business in Ohio; and tbat both bad designated tbe same man as tbe agent upon whom summons might be served. When this action was brought, and service bad, the agent so named was A. A. Anderson.

Mr. Edwin V. Patterson of tbe Bureau of Motor Vehicles was next called as a witness. He stated tbat all tbe records of licenses issued in tbe year 1926 bave been destroyed. This, of course, made it impossible to check up on tbe license tag number of tbe truck in question.

Mr. Howard S. German, deputy county clerk, was next called as a witness. He brought into court a sworn statement of ownership showing that an International truck was the property of Armour & Company. The statement further showed that the owner was located at No. 97 West Chestnut street, Columbus, Ohio. The driver of the truck in his direct examination referred to his truck as an “International.” He stated on cross-examination that it was an International truck. He also stated that he drove the truck on the day of the accident from the Armour & Company plant at No. 97 West Chestnut street, Columbus, Ohio. On cross-examination he stated that a man named Simmons, who was a shipping clerk at this Armour & Company plant at No. 97 West Chestnut street, sent him on that day with a load of meat from the Armour & Company plant at 97 West Chestnut street to Zanesville.

In other words, there is sufficient evidence in the record to show that the International truck belonged to Armour & Company; that it proceeded from the Armour & Company’s plant located at No. 97 West Chestnut street on the way to Zanesville. Both corporations, Armour & Company organized under the laws of Maine, and Armour & Company organized under the laws of the state of Kentucky, were authorized to do business in Ohio, and designated as their agent upon whom process might be served A. A. Anderson, who, as the record disclosed, was formerly in charge of the Armour & Company’s business.

It seems to us that a great deal may be inferred from the failure of plaintiffs in error to present evidence to show which Armour & Company owned the truck, and which Armour & Company employed the driver. The failure to produce evidence peculiarly within the knowledge of plaintiffs in error is a rather eloquent fact in itself, and, in our opinion, the jury was not straining the evidence if it found that this separate existence of two corporations, one organized under the laws of Maine and the other organized under the laws of Kentucky, was technical only in its character, and that, as a matter of fact, whatever business Armour & Company was doing in Ohio, and particularly in the plant located at No. 97 West Chestnut street, was a joint enterprise.

In a case such as presented by the record it properly becomes the burden of the defendants to furnish information as to the ownership of the truck and the employment of the driver. Were the rule otherwise, it would result in defeating righteous claims resulting from the wrongful acts of employees of either company.

Another assignment of error is to the effect that the court abused his discretion in permitting the bailiff of the court, who was a witness in the case, to remain in the courtroom after a request had been made for a separation of witnesses. An examination of the record discloses that the court’s attention was called by counsel for Yoter to the fact that opposing counsel asked for a separation of witnesses, that the bailiff had been subpoenaed by them, and that he might be called upon to testify as a witness. The court then stated: “Well I guess we will have to keep him in court.” No objection was made by opposing counsel. The failure to object waived whatever rights in that respect plaintiffs in error could have claimed had they objected.

The veiled charge that the trial judge was guilty of partiality in that he interrogated witnesses does not seem to us of much moment. Trial judges should not be relegated to the position of umpires only. A trial judge has an active duty to aid in eliciting the truth, in order that the verdict of a jury may at least approach the ends of justice. We deem it rather laudable on the part of the trial judge, within reasonable limits, to endeavor to clear up any doubts which may arise in the statements of witnesses. In our opinion the criticism of the trial judge in that respect is unfounded.

The record presents a case which was fairly tried and in our opinion substantial justice was done.

Judgment affirmed.

Allread, P. J., and Hornbeck, J., concur.  