
    Fike, Appellee, v. The Goodyear Tire & Rubber Co., Appellant.
    
      (Decided January 22, 1937.)
    
      Messrs. Smoyer, Kennedy, Smoyer & Vogel, for appellee.
    
      Messrs. Foust é Holden, and Mr. B. H. Nesbitt, for appellant.
   Stevens, J.

This cause is before this court on appeal on questions of law. Reference will be made to the parties by the titles which they bore in the trial court.

For some time prior to January 8, 1935, plaintiff, Benjamin F. Fike, had been continuously employed by the defendant, The Goodyear Tire & Rubber Company, and for a very short time before his injury on January 8, 1935, he had occupied the position of lobby attendant in the main lobby of defendant’s main office building. His duties .as such attendant were performed at a desk in the main lobby and not elsewhere in defendant’s factory. His hours of employment began at seven o’clock in the morning of each day, and he was paid upon an hourly basis. The entrance to defendant’s buildings where plaintiff entered was what is known as the “Goodyear Avenue Gate,” which gate was approximately south of the intersection of Goodyear avenue and East Market street.

For a number of years prior to the events herein mentioned, plaintiff had resided on Third avenue, a street extending in an easterly direction from Arlington street, which street was located southerly from the plant of the defendant company, and extended in an approximately east and west direction, parallel to bnt south of Bast Market street.

To reach his place of entrance to defendant’s plant, plaintiff could walk easterly upon Third avenue to the intersection of Second street and Fuller avenue, thence in a northwesterly direction along Kelly avenue to East Market street, and thence westerly on East Market street to the main gate of the Goodyear plant, or he could enter the plant at the same gate by walking westerly from his residence on Third avenue to Arlington street, thence northerly on Case avenue to East Market street, and east thereon to the main gate. This latter route, however, was considerably longer than the former. There were also other places of entrance to the plant. No instructions as to the route or manner by which he should arrive at his place of employment were given to plaintiff, nor was he furnished with any transportation by the defendant to take him to and from his work.

At 6:25 on the morning in question—January 8, 1935—the plaintiff left his home on foot to report for work in the main lobby of the defendant company’s plant, where he was required to enter upon the performance of his duties at seven o’clock. He proceeded to the corner of Second street and Fuller avenue, walked along the northerly side of Second street to Kelly avenue, turned left on the westerly side of Kelly avenue, and left again on the southerly sidewalk of East Market street, proceeding in a westerly direction upon the southerly side of East Market street until he had reached a point immediately north of and part way across the vehicular entrance to defendant company’s plant known as the “East Gate,” at which point and while still on the sidewalk of the public highway, plaintiff was struck by a tractor belonging to the defendant company, which tractor was being driven by one of the company’s employees through said gate, knocked to the ground and seriously injured.

The defendant .company owns property upon the southerly, as well as the northerly, side of East Market street; that upon the southerly side of the street extending from Case avenue on the west to Kelly avenue on the east, a distance of approximately 2500 feet, there being no intersecting streets running in a southerly direction from East Market street between the limits of Case avenue and Kelly avenue.

On the northerly side of East Market street is’ located a building known as the “Goodyear Recreation Hall,” in which building are an auditorium, retail employees’. stores, a bank, and some mercantile establishments; easterly therefrom is located a parking ground, which is used as a parking place for employees ’ cars. This latter property all lies to the east of the intersection of Goodyear avenue and East Market street.

Between 300 and 400 feet easterly from the Goodyear avenue gate is located the “East Gate,” where plaintiff was injured; said gate being a vehicular entrance to defendant’s premises, and being approximately 20 feet in width. This gate is used by the defendant company as one of the means of ingress and egress to the loading platform located on the northerly side of defendant’s factory building, from which platform is loaded merchandise to be carried by defendant’s motor vehicles upon the public highways in inter-plant transportation, some going tó plant No. 2, a distance of approximately one-half mile, and some goingN to plant No. 3, a distance of approximately three-fourths of a mile, from plant No. 1; but the East Gate is not an employees’ entrance.

The traffic through this East Gate, so-called, by trucks and tractors and trailers, is very heavy; there being a tremendous volume of merchandise carried through the gate, all in the usual conduct of defendant’s business.

East Market street, at the situs of the East Gate, is 85 feet wide between property lines, the paved portion of the street being 66 feet in width between curbs, and the sidewalk along the southerly side of the street being 10 feet in width. East Market street is one of the main east and west traffic arteries through the city of Akron, extending from the westerly to the easterly limits of the city, and is a main highway for traffic bound from Akron to Canton. It is also a state route numbered highway.

The evidence shows that at the intersection of Goodyear avenue and East Market street a traffic light has been erected by the city of - Akron, and at a point 150 feet east thereof another traffic light has been erected by the city of Akron, both of which lights may be manually controlled from the premises of the defendant company; this under and by virtue of an arrangement with the city of Akron, and the purpose of such control being to expedite the movement of vehicular and pedestrian traffic along and across East Market street.

The evidence further discloses that at times of traffic congestion, employees of the police department of the defendant company, who are also either deputy sheriffs or special police officers of the city of Akron, are stationed in said street to aid in facilitating the movement of traffic thereon.

The defendant company at the time in question was a self-insurer under the provisions of the Workmen’s Compensation Act.

Upon submission of the case to the jury, a verdict was returned in favor of the plaintiff and against the defendant for the sum of $24,500, upon which verdict judgment was thereafter entered. The defendant (appellant) has appealed to this court, assigning twelve specifications of error. ■ The brief of appellant, however, discusses but four of those assignments of error, which are as follows:

“1. The injuries complained of occurred under circumstances within the scope of the Workmen’s Compensation Act, and recovery therefor cannot be had at law for damages.

“2. The defendant below had the right to have the question as to whether the injuries were compensable under the Workmen’s Compensation Act or recoverable at law as damages tried and determined by the court before being required to defend before a jury, and was materially prejudiced by the requirement of the trial court that evidence bearing upon this issue be taken before the jury.

“3. The recovery was too large, showing the influence of passion and prejudice.

“4. The verdict was irregular and void, the amount thereof having been determined by quotient agreement and chance.”

These assignments of error will be considered in the order of their enumeration.

The Workmen’s Compensation Act of Ohio came into being in 1912, and, as amended in 1923, Section 35 of Article II of the Constitution of Ohio reads in part as follows:

“For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the cour’se of such workmen’s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and-administered by the state, determining the terms and conditions upon which payment shall be made therefrom. * * *”

It is, of course, the contention of the defendant that plaintiff, at the time and place of his injury, was an employee of the defendant company, acting in the course of his employment, and that accordingly his remedy is a recovery under and by virtue of the provisions of the Workmen’s Compensation Act, and that he is therefore barred of a right to prosecute his action at law for damages.

Counsel for both appellee and appellant have exhaustively briefed the law covering all of the phases of this case, and we shall endeavor to briefly collate the Ohio authorities which we believe to be decisive of the questions here presented.

In Fassig v. State, ex rel. Turner, Atty. Genl., 95 Ohio St., 232, 116 N. E., 104, the- Supreme Court stated in the fifth paragraph of the syllabus the following:

“5. The provisions in Section 35, Article II of the Constitution, and in the statute with reference to an injury received in the course of employment refer only to an injury which is the result of or arises out of the employment. Such provisions do not cover any injury which has its cause outside of and disconnected with the employment, although the employe may at the time have been engaged in the work of his employer in the usual way.”

In Industrial Commission v. Weigandt, 102 Ohio St., 1, 130 N. E., 38, the Supreme Court of Ohio said:

“2. The test of right to award from the insurance fund under the Workmen’s Compensation Law, for injury in the course of employment, is not whether there was any fault or neglect on the part of the employer, or his employes, but whether the employment had some causal connection with the injury, either through its activities, its conditions or its environments.”

This requisite of causal connection between the employment and the injury has been carried through all of the subsequently decided cases without exception, and the wording of the above syllabus has been reiterated, and reincorporated in syllabi, by tbe Supreme Court of Obio, in numerous cases later decided.

Conrad, Admx., v. Youghiogheny & Ohio Coal Co., 107 Ohio St., 387, 140 N. E., 482, 36 A. L. R., 1288, first paragraph of tbe syllabus, states:

‘ ‘ 1. Tbe Obio Workmen’s Compensation Act does not apply to employes who may be injured after tbe termination of their daily employment, nor when, at tbe time of tbe injury, tbe relationship of employer and employe has ceased to subsist. # * *”

In Industrial Commission v. Barber, 117 Ohio St., 373, 159 N. E., 363, a new element was injected into tbe consideration of tbe meaning of tbe term “course of employment”:

“1. An employe, who for tbe purpose of reaching bis place of employment travels a course which affords tbe only unobstructed access thereto, enters upon tbe course of bis employment within tbe contemplation of tbe Workmen’s Compensation Law when be reaches tbe zone of such employment that is under tbe control of bis employer, even though such zone be outside tbe inclosure of bis employer.

“2. Tbe hazards of such zone growing out of tbe conditions and environments- of bis employment are hazards of bis employment, and an injury received by an employe due to such hazards is compensable out of tbe industrial insurance fund of tbe Workmen’s Compensation Law.”

It must, of course, -be apparent that whether tbe employee is within tbe employer’s zone of control at tbe time of tbe injury, and may. by reason thereof be claimed to be within tbe course of bis employment, is dependent upon tbe facts and circumstances of each individual case. If there is no dispute in tbe fácts and tbe reasonable inferences to be drawn therefrom, there is presented a question of law for determination by the court.

Great reliance is placed by the defendant upon the Barber case, supra, in urging that this plaintiff, at the time of his injury, was within the zone of control of the defendant company, and hence within the course of his employment.

The record herein fails to convince this court that East Market street, under the circumstances attendant at the time in question, was within the zone of control of the defendant company, as that term was used in the Barber case, supra. That portion of the street where plaintiff was injured was a part of the public thoroughfare. Plaintiff’s employment had a fixed situs where his duties were performed. It was neither time nor had plaintiff reached the place where he could enter defendant’s premises to perform the duties allocated to him. The-environment, hazards, and conditions encountered by plaintiff as he walked along said public highway were not different or greater than were those of any other pedestrian walking thereon at the same time and place, and further, at the time of plaintiff’s injuries, he was from 300 to 500 feet away from the situs of his employment.

Moreover, it was not a necessary incident of plaintiff’s employment that he use said sidewalk in going from his home to his place of employment. It was optional with him, as it was with the pedestrian public using East Market street, whether he would or would not pass said gate upon the sidewalk adjacent thereto, where he knew there were hazardous conditions and environments, which he, in common with the public, must encounter.

In the words of Kinkade, J., in Industrial Commission v. Heil, 123 Ohio St., 604, 176 N. E., 458, at page 607: “We are quite unable to see any substantial merit in the proposition that an employee whose duties have a fixed situs can be in the discharge of those duties when he is a mile away, traveling upon a public highway for the purpose of reaching his place of employment.”

The record herein does- not disclose facts and circumstances which this court believes would warrant it in holding that the sidewalk adjacent to the premises of the' defendant upon the southerly side of Bast Market street was within the zone of control of the defendant company. We would indeed be loath to hold that any private corporation might extend its zone of control so as to include therein part or all of a main traffic artery, extensively used and maintained by the public solely at the public expense, and for the public benefit. Certainly, we believe no such conclusion is warranted in this case.

We are accordingly of the opinion that at the time of the injury in question the plaintiff was not in the employ of the defendant company, nor was he acting in the course of his employment; and the facts, and the reasonable inferences to be drawn therefrom, not being in dispute, the trial court therefore did not err in holding, as a matter of law, that plaintiff was not at the time an employee of defendant, acting in the course of his employment.

In this connection, the cases of Industrial Commission v. Balter, 127 Ohio St., 345, 188 N. E., 560; Industrial Commission v. Gintert, 128 Ohio. St., 129, 190 N. E., 400, 92 A. L. R., 1032, and Gregory v. Industrial Commission, 129 Ohio St., 365, 195 N. E., 699, are of interest and shed some light upon the question under consideration.

With reference to the second assignment of error urged by the defendant, it will be observed that the answer filed by the defendant set up, as a matter of defense, the claim that plaintiff, at the time of his injury, was an employee of the defendant company in the course of his employment, and that there was a causal connection between tbe claimed injury and the employment of plaintiff.

Inasmuch as the answer admitted that plaintiff suffered injury by reason of the operation of the tractor of the defendant company, while the tractor was being operated by an employee of the defendant company within the scope of his employment, the allegation in the answer that plaintiff at the time was an employee acting within the course of his employment, was strictly matter of defense in the nature of a confession of injury, and attempted avoidance of liability in this action upon the claim that plaintiff was required by law to seek his remedy under the provisions of the Workmen’s Compensation Act.

Before any evidence was introduced—even before the impaneling of the jury—defendant suggested to the court that its defense that plaintiff was injured under such circumstances as entitled him to compensation under the .Workmen’s Compensation Act, should be heard and decided by the court in the absence of the jury, and stated to the court that the evidence upon that issue would be undisputed and would raise only a question of law. That request was denied, and, at the close of plaintiff’s evidence and again at the close of all of the evidence, defendant requested the court to decide that question of law in its favor, and the plaintiff also requested the court, at the close of all the evidence, to decide that question in' his favor; and, there being no substantial conflict in the evidence in reference to the question, the court decided that issue in favor of the plaintiff; to all of which rulings the defendant duly excepted.

We find no impelling authority which leads us to the conclusion that it was incumbent upon the trial court to first dispose of this matter of defense in the absence of the jury, before proceeding to trial of the question of the negligence of defendant. After all, the rules regulating the order in which issues shall be presented are universally regarded as elastic, and the court is vested with discretion in determining the order in which the several issues shall be presented. 39 Ohio Jurisprudence, 641, Section 68.

We find no abuse of discretion on the part of the trial court in requiring the issues of the case to be presented in the order in which they were presented, and accordingly we conclude that no prejudicial error intervened by reason of the court’s ruling in that connection.

With reference to the claim that the recovery was too large, showing the influence of passion or prejudice, we have carefully read the entire record in this case and we find a sharp conflict in the expert testimony as to the nature, extent, and probable .permanency of the injuries sustained by plaintiff, and as to the amount of resulting disability therefrom.

If the nature and extent of plaintiff’s injuries were as related by the experts who testified for plaintiff, and the probable permanency of plaintiff’s disability was such as was indicated by those experts, the amount of the verdict, while large, of itself is not sufficient to convince this court that the verdict was rendered under the influence of passion or prejudice, and there are no other circumstances shown by the record indicating the influence of passion or prejudice upon the jury in its determination of' the issues in the case.

In the situation here presented it was, of course, the province of the jury to determine whether plaintiff’s evidence was entitled to the greater weight and consideration, or whether the evidence of the defendant, with reference to the nature and extent of plaintiff’s injuries and disability, was to be given the greater weight, and it was incumbent upon the jury to conform its finding to the conclusion which it reached in that respect if the other issues were resolved in favor of plaintiff. Obviously, the jury believed the experts who testified in favor of the plaintiff, and disbelieved, or attached little weight to, the testimony of the experts for the defendant; and, from our reading of the record herein, we find ourselves unable to unanimously agree that the jury’s determination of that question was manifestly against the weight of the evidence.

We come now to a consideration of the verdict, and of the question as to whether the verdict was irregular, and was in fact a quotient verdict.

In the presentation and determination of that question, counsel for both parties, as well as the trial court, had clearly in mind the rule governing quotient verdicts, and also a clear understanding of what constituted a quotient verdict.

The record discloses that, after the return of the verdict, counsel for defendant went into the room used by the jury during its deliberations and there discovered certain fragments of paper, which, when pieced together, made up defendant’s exhibit “A” upon the hearing on the motion for a new trial. That paper contained eleven sets of figures, which, when totaled, aggregated 294,000, and that total was divided by 12, with the resultant quotient of 24,500. Twenty-four thousand, five hundred dollars was the amount of the verdict returned in favor of the plaintiff.

Upon the claim that said exhibit plus certain other papers contained in defendant’s exhibit “B” constituted evidence aliunde, defendant offered the affidavits of Messrs. Foust and Holden as to the discovery of exhibits A and B, and also an unsigned affidavit of juror Crooks, relating to the manner in which the verdict in this case was reached and returned.

Objection was made by counsel for the plaintiff to the admission of any of this evidence, which objection the trial court overruled as to exhibits A and B and the affidavits of Messrs. Foust and Holden, and sustained as to the unsigned affidavit of juror Crooks. Thereafter, however, the objection was withdrawn by counsel for plaintiff and a full inquiry into the conduct and deliberations of the jury was had.

Testimony was taken from all of the jurors in the case, except the foreman of the jury, who at the time was in Florida, and, after all of said evidence had been heard by the trial court, the court concluded that the verdict returned was not a quotient verdict; and it accordingly overruled defendant’s motion for a new trial and entered judgment upon the verdict.

The evidence of the jurors, to our minds, conclusively demonstrates that the verdict in question was not a quotient verdict, there having been no antecedent agreement upon the part of the jurors that they would be bound by the quotient obtained through the addition of all of the amounts voted by the several jurors, and the dividing of the total by 12.

The evidence clearly discloses that eleven of the jurors did agree that the amounts voted by them should be placed upon paper and totaled; the twelfth juror voted for the defendant, and accordingly voted no amount; and it was further agree_d that the total so obtained should be divided by twelve.

We believe the conclusion to be fully warranted that the jurors understood before the totaling of the several amounts, and the division thereof, that the jury was not to be bound by the quotient so obtained, and the evidence clearly shows that after the quotient had been so obtained, the jurors further considered the question, balloted secretly upon the adoption or non-adoption of said amount as their verdict, and, ten of the jurors agreeing that the amount was satisfactory to them and expressed what in their opinion was a fair recovery for the plaintiff, the sum was inserted in the verdict, which was then signed by ten members of the jury and returned into court.

One of the jurors who voted one of the amounts entering into said total did not agree to or sign the verdict that was returned, and ten of the eleven jurors who testified, including one who did not sign the verdict, testified that there was no such antecedent agreement as would constitute this verdict a quotient verdict.

It appears from the evidence of some of the jurors that the jury was cautioned by the foreman of the jury that it would not be bound by any quotient obtained through following the procedure above outlined. We think there is a complete failure of proof to establish an antecedent agreement upon the part of the jury to be bound by the quotient obtained; and its conduct, after the obtainance of said quotient, indicates a consideration of the amount so obtained, a secret ballot thereon, and an approval of that amount. Such conduct is not in.accord with our understanding of the manner in which a quotient verdict is obtained.

We are of the opinion that the conduct of the jury in arriving at its verdict, while not to be recommended, does not come within the proscription of the rule governing the rendition of quotient verdicts, and we therefore conclude that the trial court did not err in overruling defendant’s motion for a new trial predicated upon defendant’s claim that the verdict returned was a quotient verdict.

As to the other errors assigned, but not urged in brief or argument, we find no prejudicial error.

The judgment of the trial court will be affirmed.

Judgment affirmed.

Funk, P. J., and Washburn, J., concur.  