Summary
In Morton v. Green, 2 Neb. 458, which is an ejectment under section 411 supra, the court held that ejectment would not lie; that to entitle him to recover the plaintiff "must produce a patent or show that he holds a final certificate in harmony with the government."
Summary of this case from Adams v. CouchOpinion
No. 15750
Decided April 16, 1969.
Summary judgment — Section 2311.041, Revised Code — Defendant's motion — Supported by affidavits — Plaintiff rebuts only by memoranda of law — Summary judgment to be granted.
Section 2311.041, Revised Code, requires that a party against whom a motion for summary judgment has been filed, with supporting affidavits, must respond with affidavits in rebuttal of the moving party's evidence or the latter's motion for summary judgment should be granted.
Messrs. Cubbon Rice, for plaintiff.
Messrs. Short Purdy, Messrs. Knapke Meikle and Mr. Milton C. Boesel, for defendant.
This cause comes before the court on a motion for summary judgment filed by the defendant under the provisions of Section 2311.041, Revised Code.
In support of his motion the defendant filed affidavits and answers to interrogatories. Except the pleadings and a memorandum, containing argument only, against the motion of the defendant, the plaintiff filed nothing further by way of evidence against the motion. A hearing on the motion was duly held on March 18, 1969, after proper notice.
The petition of the plaintiff discloses that an automobile purchased from defendant herein on June 26, 1963. by the Federal Mutual Insurance Company and there driven by William Fry in the course of his employment with the Federal Mutual Insurance Company was on June 28, 1963, parked on Enterprise Street within the city of Celina, Mercer County, Ohio, headed in a northerly direction upon the right or easterly side of Enterprise Street by William Fry, an employee of Federal Mutual Insurance Company; it is alleged that at the time it was parked the emergency or parking brake was set and the automobile was left in second gear; a few minutes after it was parked and left unattended it rolled backwards or southerly down the declining surface of Enterprise Street and struck plaintiff who was in the process of unloading a truck parked on the south side of the intersection of Enterprise and Market Street, Celina, Ohio, resulting in the plaintiff receiving injuries to his person; that the collision resulting in injuries sustained by the plaintiff was due directly and proximately to the negligence of the defendant Bruce Green in failing to inspect the parking brake or emergency brake prior to its delivery to its customer, when the defendant knew or in the exercise of ordinary care should have known that such failure would probably result in injury to others then and there in the use of streets and particularly the plaintiff herein, and that the defendant did warrant the automobile was free from defects. The petition concludes with a prayer for damages in the amount of $500,000.
The amended answer of the defendant discloses that this defendant sold and delivered a new automobile received from the Ford Motor Company, to Federal Mutual Insurance Company and delivery was made to its representative A. William Fry. After delivery, William Fry drove the automobile and on June 28, 1963, parked the automobile unattended on Enterprise Street on the east side thereof, across from Lakeside Market, a short distance from Market Street. A few minutes after the car was so parked it rolled backwards or in a southerly direction down the declining surface or slope on Enterprise Street, across Market Street and came in contact with plaintiff south of Market Street causing him to receive injuries.
The answer further alleges that at the time of parking of the automobile, the emergency brake had not been applied nor was the automobile in gear or had any precaution been taken to immobilize the automobile to keep it in its parked position.
The defendant further answered with a general denial.
The answer also contains a separate defense that the plaintiff made a settlement with the Federal Mutual Insurance Company for negligence in the sum of $52,000.00 and hence there can be no recovery against this defendant as a joint tortfeasor. The prayer prays for a dismissal of the entire case.
In order to establish the liability of the defendant, the plaintiff must prove certain items of negligence by the defendant as alleged in the petition of the plaintiff.
First, the plaintiff must prove that the brake on the automobile in question was defective.
The affidavit of A. William Fry containing the transcript of his testimony as a witness in a trial in the District Court of the United States for the Northern District of Ohio, Western Division, known as Federal Mutual Insurance Company, Plaintiff, v. Ford Motor Company and Bruce Green, dba Bruce Green Ford Sales, Defendants, No. C 65-120, discloses he made the following statements on page 27 relative to the automobile:
"Q. You continued to operate this car for how long? A. Until November of 1964.
"Q. And at that time what happened to it? A. Well, I went in to Decatur, Illinois, at the office permanently and it was given to my replacement.
"Q. Do you know what disposition was made of this car ultimately? A. No, I do not.
"Q. Do you have any knowledge as to whether Federal Mutual still has it? A. No, I do not."
So, no automobile or brake was available in that proceeding nor in this to prove by the best evidence that the brake was defective.
The affidavit of Vernon L. Shinn, an employee and automobile mechanic for the defendant who performed the duties of his service and parts manager when the automobile was purchased in 1963, reveals that the automobile was a new vehicle. After its arrival from the Ford Motor Company it received his personal attention. He gave it an inspection, including the operation of the brakes, lights and motor, to determine whether the various brakes and all parts and the equipment thereon were operating properly and found the automobile was in excellent condition. It was then turned over to the test driver for a "road test." After this test was made the test driver reported the car to operate satisfactorily and to be in excellent condition on June 25, 1963. The automobile was delivered to William Fry, as the representative of the Federal Mutual Insurance Company, purchaser of the automobile.
The affidavit of Jerome C. Osterholt, an employee and serviceman for the defendant, reveals that he checked and tested and "road tested" the automobile in question before delivery, following the prescribed procedures for checking and testing the automobile including the foot brake, hand brake, assembly, operation, gear shift or transmission and lever operation. He found no improper or defective operation of the brake assembly or the gear shift operation. Following the delivery of the automobile there were no complaints brought to his attention as to its operation or function.
The affidavit of A. William Fry, identified above, discloses that he made the following statements on page 63 relative to the issue of whether or not the brake was defective:
"Q. Mr. Fry, I just want to ask you a few questions. After this accident had occurred, or a day or two later when you took your car in to Bruce Green, you didn't make any complaint at that time as to the parking brake or the gears, did you? A. I remember just — you know, like a conversation with the service manager.
"Q. Yes, but you didn't make any complaint of it, did you? A. Not to have it repaired or nothing, no. Q. That's right."
On the basis of the affidavits of A. William Fry, Vernon L. Shinn and Jerome C. Osterholt and there being no controverting evidence introduced by the plaintiff, reasonable minds can reach only one conclusion: that the brake on the automobile in question was not defective, but on the contrary was in good working order on June 25, 1963, the automobile being delivered by the defendant to A. William Fry on June 26, 1963, two days before the accident.
Second, to establish the liability of the defendant, the plaintiff must prove that the brake on the automobile was properly applied by A. William Fry, its operator, at the time and place of the accident.
The affidavit of A. William Fry, identified above, shows that he made the following statements on pages 59 and 60 relative to the issue of whether or not the brake on the automobile was properly applied at the time and place of the accident:
"Q. Now, Mr. Fry, when you parked this automobile, it was parked at the east curb of Enterprise in the first parking space north of Market Street, is that correct? A. That is correct.
"Q. And you were approximately opposite the front of this grocery store which was on the west side of Enterprise Street? A. Yes.
"Q. Now, the fact is that you don't know whether the car was or was not in gear when you left it parked at that location, do you? A. No, I don't know whether it was or was not. All I know is that when I turned the corner I put it in second.
"Q. But you have no recollection of what gear it was in at the time you stepped out of it? A. No, no.
"Q. And by the same token, you have no recollection of whether the parking brake on this car — this left-hand foot brake, parking brake — was on or was off when you left the car? A. Whether I put it on or put it off, I don't know."
The following statements were also made by Mr. Fry on pages 68 and 69 of his affidavit:
"Q. How far do you think it had traveled from the stationary position it had been in when you slammed the door and left it — A. I said about —
"Q. (Continuing) — to where you saw it up against the tree? A. About 250 feet, I said.
"Q. About 250 feet. You didn't see the truck? A. No.
"Q. And you don't recall seeing Mr. Morton there? A. No. he was gone.
"Q. He was gone. I see. But your car was up against the tree at that time? A. Right.
"Q. Was it damaged in any way? A. Yes, that is what I got the estimate for.
"Q. Was the front end of it damaged at all? A. No.
"Q. What did you do then? Did you get in your car and drive away? A. Yes.
"Q. You drove that very car away? A. Yes, sir.
"Q. The only damage, I understand was the damage on the back of it, on the right rear panel of this car? A. And the bumper.
"Q. The right rear bumper? A. It is one whole piece.
"Q. The rear bumper? A. Yeah.
"Q. When you went up to your car did you look at the gear your car was in? A. When I got behind the wheel, before I started it I did, yes.
"Q. And your car was in what gear? A. In neutral.
"Q. Did you try the emergency brake or the parking brake at that time? Did you examine it? A. I looked and saw it was off.
"Q. It was disconnected; it was not on? A. It was not on."
On May 28, 1964, Mr. Leyden, of Federal Mutual Insurance Company, his employer and he, Mr. Fry, made some tests of the automobile involved in the accident on June 28, 1963, to determine whether the automobile would move backwards from the same parking spot it had been parked on June 28, 1963, when in any gear or with the emergency brake applied. The automobile at that time had been driven about 20,000 miles by Fry.
And the following statements relative to this test were made by Mr. Fry on pages 144, 145 and 146 of his affidavit:
"Q. What differences, if any, were there between June 28, 1963 and May 28, 1964, with respect to the topography, the contour, or any other physical circumstances or conditions at that intersection, and specifically where you parked your car on June 28, 1963? A. What I did? I mean —
"Q. No, not what you did. State what differences, if any, there were. A. There were no differences whatsoever in the street in the eleven months period. It had not been changed by anybody, the engineer or the street department or anything. It was exactly the same.
"Q. Now, would you please describe to the court and jury just what you did on May 28, 1964, with respect to this same car? A. I tried — well, I did park the car where I thought I had parked it on the date of the accident, and then we tested it in all gears to see if it would roll backwards — the four gears, first, second, third and reverse — and if you had it in gear it would not roll backwards. If you had it in neutral it would almost immediately start to roll, and if you had the emergency brake set, definitely set, it would not roll neither. It would hold. And we went through this maybe twelve to fifteen times.
"Q. On the occasions when you had the car in gear, did you have the emergency brake disengaged? A. Yes; we tested it that way, too.
"Q. Did the car roll in that condition? A. No, it did not.
"Q. Did the car roll when you had the gearshift in second gear and the emergency brake disengaged? A. No, it would not.
"Q. Did the car roll when you had the gearshift in reverse position and the emergency brake was disengaged? A. It would not roll."
So, again on the basis of the affidavit of Mr. Fry and there being no controverting evidence introduced by the plaintiff, reasonable minds can reach only one conclusion: that the brake on the automobile was not properly applied by its operator, Mr. Fry, at the time and place of the accident.
Syllabus 2 of Laughlin v. City of Cleveland, 168 Ohio St. 576, reads:
"2. An inference of negligence can arise only upon the proof of some fact from which such inference can be reasonably drawn and it can never arise from mere guess, speculation, or wishful thinking."
Third, to establish the liability of the defendant, the plaintiff must prove that there was not a proper inspection by the defendant of the automobile in question in which a defect in the brake might have been discovered.
The affidavit of Vernon L. Shinn, identified above, clearly shows the nature and extent of the examination of the automobile prior to its delivery to Mr. Fry. The affidavit of Mr. Shinn shows that after the accident, on July 3, Mr. Fry drove the automobile to Bruce Green Sales to have an estimate of the damages to the rear of the automobile. Mr. Fry made no complaints as to the operation of the automobile. Knowing the car had been in an accident, Mr. Shinn, for his own information, checked the emergency brake and the transmission and found them to be satisfactory; on July 25, 1963, three weeks after the estimate was made, Mr. Fry brought the car to the garage and requested the repairs be made as set forth in the estimate. Fry made no other request for adjustments of any kind or made any complaints as to the operation of the automobile or any defects or failures therein. After the repairs were made he again checked the automobile and found it operating properly with no defects.
The affidavit of Jerome C. Osterholt, identified above, also clearly shows the nature and extent of the examination of the automobile prior to its delivery to Mr. Fry.
So, still again, on the basis of the affidavits of Mr. Shinn and Mr. Osterholt and there being no controverting evidence introduced by the plaintiff, reasonable minds can reach only one conclusion: that there was a proper inspection of the automobile in question and its brake both before and after the accident in which any possible defects in the brake might have been discovered.
Thus, the plaintiff has failed to prove the three acts of negligence on the part of the defendant necessary to establish the liability of the defendant, namely:
1. That the brake on the automobile in question was defective.
2. That the brake on the automobile was properly applied by A. William Fry, its operator, at the time and place of the accident.
3. That there was not a proper inspection by the defendant of the automobile in which a defect in the brake might have been discovered.
The warranty claim of the plaintiff in his petition for a defect in the brake of the automobile in question loses its significance and has no value in light of the court's findings against the plaintiff and in favor of the defendant, specifically the finding that the brake on the automobile was not properly applied by A. William Fry, its operator at the time and place of the accident.
If the brake was not properly applied by its operator, there was nothing to prevent the automobile from rolling backward. Only if the brake was properly applied, then and then only, would the issues of whether or not the brake was defective and whether or not there had been a proper inspection of the brake become pertinent.
The separate defense in the amended answer of the defendant that the plaintiff made a settlement with the Federal Mutual Insurance Company for negligence in the sum of $52,000.00 and hence there can be no recovery against this defendant as a joint tortfeasor is not considered in light of the court's finding favorably for the defendant on the first defense.
Finally, and perhaps most importantly, Section 3211.041 (D), Revised Code, provides in part:
"When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."
The plaintiff, the adverse party to the motion of the defendant for a summary judgment, made no response, except his memorandum against the motion, by affidavit or otherwise setting forth specific facts showing there is a genuine issue for trial. There were only the pleadings and the memorandum of the plaintiff against the motion containing argument only to be construed in favor of the plaintiff.
On the basis of the pleadings, the memorandum of the plaintiff against the motion of the defendant for summary judgment, the affidavits and the answers to interrogatories filed by the defendant, the court finds that reasonable minds can come to but one conclusion and that conclusion is adverse to the plaintiff.
Therefore, the court finds the motion of the defendant for a summary judgment well taken and grants judgment on the motion in favor of the defendant and against the plaintiff as a matter of law.
Judgment for defendant.