Opinion
No. 38413
Decided December 23, 1964.
Summary judgment for defendant — Action for personal injuries — Appeal — No bill of exceptions — Reversal by reviewing court error, when.
APPEAL from the Court of Appeals for Franklin County.
This is an action to recover damages for personal injuries. On appeal to the Court of Appeals that court set aside the summary judgment and remanded the cause for trial, "for reason that the genuine issue of fact was not resolved beyond the slightest doubt."
The allowance of a motion to certify the record brings the cause to this court for review.
Mr. George E. Tyack and Mr. Paul Scott, for appellee.
Messrs. Vorys, Sater, Seymour Pease, Mr. Byron E. Ford, Mr. Richard G. Ison and Mr. Jacob E. Davis, II, for appellant.
The Court of Appeals was in error in applying the "slightest doubt" test for granting a summary judgment. Cunningham, Trustee, v. J.A. Myers Co., 176 Ohio St. 410.
However, the plaintiff contends that, even though the "slightest doubt" test was applied by the Court of Appeals, an application of the "reasonable minds" test would reveal that there are substantial questions of fact which should be decided only by a jury.
In order to rely upon such a contention, it would be necessary for plaintiff to show what the trial court had before it when it ruled upon the motion for summary judgment. A bill of exceptions would be necessary to show that. Smith v. Diamond Milk Products, Inc., 176 Ohio St. 143, 198 N.E.2d 72. Since there was no bill of exceptions, the judgment of the Court of Appeals must be reversed and that of the Common Pleas Court affirmed.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH and GIBSON, JJ., concur.
For the reasons stated in my dissenting opinion in Wickham v. First Federal Savings Loan Co., 177 Ohio St. 170, I must dissent from the determination in this cause that a bill of exceptions was necessary.