Opinion
No. 2210
Decided November 20, 1952.
Principal and agent — Proof of relationship — Declarations of purported agent admissible, when — Person injured when dealing with undisclosed agent — May elect to sue principal or agent.
1. In an action involving the principal-agent relationship, evidence of declarations of the purported agent as to the existence of the relationship is admissible, where there is other evidence, either direct or circumstantial, which tends to establish the relationship.
2. A party dealing with an undisclosed agent and injured by such agent's negligence may, upon discovery, elect to sue either the agent or the principal.
APPEAL: Court of Appeals for Montgomery county.
Messrs. Nolan, Boesch Wolff, for appellee.
Mr. Otterbein Creager, for appellant.
This appeal is from a judgment for plaintiff, entered on a general verdict of a jury in her favor and against the defendant in the sum of $528.73. The action was for damages for personal injuries suffered by plaintiff by reason of a treatment to her hair given by Thelma Daubenmeyer, an operator in a beauty shop known as Thelma's Beauty Shop. The issue between the parties, particularly under consideration on this appeal, is whether the defendant operated the beauty shop and, if so, was Thelma Daubenmeyer his agent and acting for him when she administered the treatment to plaintiff.
Defendant admitted that he owned the building in which the shop was operated and the equipment used in such operation, but denied that he operated the beauty shop and denied that Thelma Daubenmeyer was his agent. Defendant and Thelma Daubenmeyer agreed in their testimony as to the terms upon which the business was carried on. Defendant provided the building and the equipment. From the proceeds Thelma Daubenmeyer took 50 per cent of the gross and from the other 50 per cent paid all bills for supplies and operating expenses, any sum remaining being turned over weekly to the defendant. This sum, so received by defendant, is contended by him and Thelma Daubenmeyer to be rental for the store room and equipment. It is contended by plaintiff that the arrangement was the basis for return to defendant as owner and operator of the business, and that the sum paid to Thelma Daubenmeyer was wages to her as an employee and agent of defendant.
Plaintiff was permitted, over objection, to state that three days after the treatment upon which her action is predicated, Thelma Daubenmeyer said to her that she (Thelma Daubenmeyer) was running the shop for Corbin, the defendant. The court received the testimony upon promise of plaintiff "to connect it up." It developed that the defendant had a license from the State Board of Cosmetology. Thelma Daubenmeyer also had a license to operate and a license to manage a beauty shop.
After verdict, defendant moved for judgment notwithstanding the verdict and for a new trial, both which motions were overruled.
The following errors are assigned:
1. In permitting the testimony of plaintiff as to the statement of Thelma Daubenmeyer that she was working for Corbin to go to the jury.
2. The court erred, as a matter of law, in submitting the case to the jury on the evidence adduced because it was wholly insufficient to prove the agency of Thelma Daubenmeyer.
3. The verdict and judgment are against the manifest weight of the evidence.
4. Failure of the trial judge to grant a new trial upon a showing that the verdict returned by the jury was a quotient verdict.
The first three assignments are so related that they may be considered together.
Manifestly, the statement of Thelma Daubenmeyer that she was working for the defendant, if made, which she denied, would not, standing alone, prove or tend to prove the relation of principal and agent. However, if there is other evidence direct or circumstantial tending to establish the agency relationship, the declaration of the agent may be considered. Holmes v. Holland, 11 O. D. Rep., 768, 29 W. L. B., 115; Sessions v. Isabel, Exrx., 2 N. P. (N.S.), 288, 14 O. D., 491.
It is contended also that plaintiff, by her own admission, dealt with Thelma Daubenmeyer as the individual who was operating the beauty shop and that plaintiff may not be heard to maintain otherwise. It is evident that when plaintiff was treated by Thelma Daubenmeyer she did not know that the latter was in the employ of defendant. If there was the relation of principal and agent between defendant and Thelma Daubenmeyer, it was an undisclosed relation. In such situation the party who dealt with the undisclosed agent may, upon discovery, elect to sue either the principal or the individual with whom he dealt. Thayer v. Luce, 22 Ohio St. 62.
The agreement under which Thelma Daubenmeyer and the defendant conducted the beauty shop and the division of the proceeds of the business is susceptible of the construction placed upon it by each party. The most significant evidence in behalf of the plaintiff, as to the status of defendant, is the admission that he held a certificate and a renewal of certificate from the Board of Cosmetology. His testimony is quite meager as to the nature of this certificate, and it is contended by his counsel that it was such a certificate as is required to be held by the owner of a building in which a beauty parlor is conducted. We cannot so interpret the purpose or import of the only certificate that the defendant could have been issued. The certificate must have been issued by authority of Section 1082-16, General Code, which, so far as applicable, reads:
"Within 60 days after the appointment of the board * * * and annually thereafter during the month of June, every person * * * conducting or operating or desiring to operate a beauty parlor, in which any one, or any combination, of the occupations of a cosmetologist are practiced * * * shall apply to the board for a license, through the owner, manager or person in charge, in writing upon blanks prepared and furnished by the board." (Emphasis ours.)
The quoted part of this section, in our judgment, connotes that the person to whom a license, as therein provided, is issued, is either conducting or operating or desires to operate a beauty parlor. The fact that the defendant at the time of the alleged act held a certificate under the foregoing section was evidence of probative value that he was operating the beauty shop. The possession of the certificate together with other facts appearing in the record supports the trial judge in permitting the statement as to the agency of Thelma Daubenmeyer to go to the jury and in submitting the other questions of agency to the jury for determination.
Nor can we hold that the verdict is manifestly against the weight of the evidence. All the facts surrounding the operation of the beauty shop and the relation of the defendant and Thelma Daubenmeyer in its conduct were properly before the jury for resolution, and the contention of the defendant that he had nothing whatever to do with its operation and no control over the operator therein likewise was clearly set forth in the evidence. In all, there was an issue of fact which was properly presented to the jury for determination.
Without extended discussion, we do not hold with the defendant on the fourth assignment of error, viz., that the verdict should not have been received because it was a quotient verdict. This court in Lund v. Kline, 24 Ohio Law Abs., 387, a case somewhat more favorable to the defendants' viewpoint than the instant case, adopted the theory of defendant. However, the Supreme Court reversed that judgment in 133 Ohio St. 317, 13 N.E.2d 575. The language of Judge Day at page 319, 320, is especially pertinent:
"The ballots and slips of paper retrieved from the jury room were offered as evidence aliunde. These, however, merely show that the quotient result and the amount of the verdict are the same, but do not show the existence of a prior agreement on the part of the acquiescing jurors to be bound by the quotient result. * * *
"Proof of a prior agreement to be bound by the quotient result cannot be furnished by affidavits or testimony of the jurors themselves, but must be by evidence aliunde."
The judgment is affirmed.
Judgment affirmed.
WISEMAN and MILLER, JJ., concur.