Summary
In Toms v. Delta Savings Loan Assn. (1955), 162 Ohio St. 513 [55 O.O. 413], paragraph three of the syllabus, this court specifically held that an agency relationship is not established between a savings and loan company and a softball player, even though the savings and loan company sponsored the softball team for publicity and provided the team with uniforms bearing the company's name.
Summary of this case from Hanson v. KynastOpinion
No. 33977
Decided February 9, 1955.
Pleading — Demurrer — Admits well pleaded facts — Not conclusions of law unsupported by alleged facts — Allegation of agency relationship — Conclusion of law not admitted by demurrer, when — Spectator struck with baseball by member of ball team — Team advertising and promoting business of defendant — Agency relationship not supported by facts alleged.
1. For the purpose of testing the legal sufficiency of a pleading, a demurrer admits all facts which are well pleaded and all inferences which can reasonably be drawn therefrom, but it does not admit conclusions of law which are at variance with or unsupported by the alleged facts upon which they depend.
2. An allegation in a petition that one person is the "agent" of another by reason of an "oral employment and service agreement" constitutes a conclusion of law and is not admitted by a demurrer to such pleading.
3. A petition in an action to recover damages for personal injuries resulting when the plaintiff was struck with a baseball by a member of a baseball team engaged in a game on a public playground, which alleges that, while wearing a uniform and shirt bearing advertising matter promoting the business of the defendant and using the baseball equipment furnished by it under an "oral employment and service agreement," the player, "as agent" for the defendant, "negligently, carelessly, and recklessly, and with great force and violence struck plaintiff," does not state facts sufficient to support the pleaded conclusion of agency. ( Rogers v. Allis-Chalmers Mfg. Co., 153 Ohio St. 513, approved and followed.)
APPEAL from the Court of Appeals for Hamilton County.
An amended petition reading as follows was filed in the Court of Common Pleas of Hamilton County:
"Plaintiff, Howard Alvin Toms, states that he is a minor 12 years of age, and that he is suing herein by and through Katherine Toms, his mother and next friend, and that said Katherine Toms is a citizen and resident of Hamilton County in the state of Ohio and over 21 years of age.
"Plaintiff further states that the defendant, The Delta Savings Loan Association, is a corporation duly created, organized and existing by and under the laws of the state of Ohio, and engaged in the business of handling money on savings accounts received from depositors and making mortgage loans on real estate for profit.
"Plaintiff further states that in the spring of the year 1952 said defendant, in advertising and promoting its business of obtaining savings accounts and money from depositors and lending money for profit, entered into an oral employment and service agreement with James Spears, Jr., Ralph Grissom, Philip Hudson, Gerald Toms, Robert Mell, James Sears and several others, comprising an association of baseball players, whereby said defendant obtained and received advertising services and benefits in the promotion of its aforesaid business in exchange and consideration for the use of its baseball uniforms, baseballs, baseball gloves, baseball bats and other baseball equipment owned by defendant and furnished, maintained and provided to and for said members of said baseball team for use in attracting crowds and assemblages of people by playing baseball games, whereby said baseball players advertised and promoted defendant's said business.
"Plaintiff further states that on or about the 23rd day of July, 1952, at LeBlond Field, a public playground in the city of Cincinnati, Ohio, at which time and place this plaintiff and a crowd of persons had assembled to and were witnessing and observing the baseball game being played by the aforesaid baseball team, and while the aforesaid baseball players were engaged in playing said baseball game and in carrying out said advertising and service agreement, and while said baseball players were wearing and displaying upon said uniforms and shirts owned, furnished and provided by said defendant as aforesaid, which said uniforms and shirts carried and bore advertising matter consisting of the words, `Delta Savings Loan Association,' one of said players, Philip Hudson, as agent for defendant as hereinbefore set out, and using defendant's equipment and wearing one of the defendant's uniforms and shirts bearing the words `Delta Savings Loan Association,' negligently, carelessly, and recklessly, and with great force and violence, struck plaintiff in the left eye with one of the aforesaid baseballs, causing a traumatic rupture of his eyeball and causing blindness of his said left eye, whereby plaintiff suffered much and great mental and physical pain, suffering and anguish and has been deprived of the use and sight of his said eye, and whereby plaintiff will continue to suffer much and great mental and physical pain, suffering and anguish and will be deprived of the use of his said eye throughout the remainder of his lifetime, all to his damage in the sum of seventy-five thousand ($75,000) dollars, no part of which has ever been paid, although demand has been made therefor.
"Wherefore, plaintiff prays judgment against said defendant in the sum of seventy-five thousand ($75,000) dollars; for his costs herein expended, and all other relief, both general and equitable, to which plaintiff may appear entitled."
A demurrer to the amended petition was filed according to Section 11309, General Code (Section 2309.08, Revised Code), which states:
"The defendant may demur to the petition only when it appears on its face either:
"* * *
"10. That the petition does not state facts which show a cause of action."
The Common Pleas Court sustained the demurrer to the amended petition and, plaintiff not choosing to plead further, rendered final judgment for defendant.
An appeal was perfected to the Court of Appeals for Hamilton County, which reversed the judgment of the Court of Common Pleas, necessarily determining that the amended petition does state sufficient facts to constitute a cause of action against the defendant.
The cause is before this court upon the allowance of a motion to certify the record of the Court of Appeals.
Messrs. Long Bloom and Mr. John Philip Strother, for appellee.
Mr. Alfred T. Fulford and Mr. Chester R. Shook, for appellant.
Briefly stated, the question presented is: Does the amended petition on its face state facts which show a cause of action?
As seen by a reading of the petition, the plaintiff pleads, essentially, that while witnessing a baseball game he was injured when a player named Philip Hudson "negligently, carelessly, and recklessly, and with great force and violence, struck plaintiff in the left eye" with a baseball, and that said baseball player was wearing a uniform which bore the name, "Delta Savings Loan Association." Plaintiff alleges further that the uniform and equipment being used by this player at the time of the injury were "owned by defendant and furnished, maintained and provided to and for said members of said baseball team for use in attracting crowds and assemblages of people by playing baseball games, whereby said baseball players advertised and promoted defendant's said business." Plaintiff then prays that defendant be held liable to him in damages for this injury.
It is clear that in order for defendant to be liable to plaintiff in this instance he must be so under the doctrine of respondent superior.
"* * * it is essential to the sufficiency of a pleading alleging conclusions of law that such conclusions are supported by a statement of facts justifying them. Accordingly, a conclusion of law at variance with, or unsupported by, the facts stated is insufficient and cannot be relied on, and must yield to the conflicting averments of facts.
"While conclusions of law are ordinarily disregarded in determining the sufficiency of a pleading * * * this is not true where the conclusions are supported by an averment of facts from which the conclusions are drawn." 71 Corpus Juris Secundum, 40, Section 15.
"The mere presence of a conclusion, if a logical deduction from facts alleged, will not render a pleading insufficient. But a conclusion has no greater force than the premise upon which it is founded, and it is inadequate when it is unsupported by the recited facts upon which it depends." 1 Bancroft, Code Pleading Practice and Remedies (10-year Supp.), 28, Section 45. "A demurrer to a pleading admits only what is well pleaded therein. It does not admit a conclusion of law unwarranted by the facts on which it is predicated." Pittsburgh, Cincinnati St. Louis Ry. Co. v. Moore, 33 Ohio St. 384, 31 Am. Rep., 543.
Certain of the facts pleaded in this petition are followed by the conclusion, "Philip Hudson, as agent for defendant." The words, "as agent," constitute a conclusion of law. Hoyer v. Ludington, 100 Wis. 441, 76 N.W. 348; Hamp v. Universal Auto Co., 173 Wn. 585, 24 P.2d 77. The first question for determination, then, is whether the operative facts pleaded to support the allegation of agency do in fact support such conclusion of law.
The facts pleaded to support the conclusion of agency are essentially as follows:
1. Defendant entered into an "oral employment and service agreement" with various individuals constituting a baseball team, whereby defendant furnished said team with uniforms and equipment with which to play baseball.
2. Defendant's name was prominently displayed upon said uniforms and defendant thereby gained advertising benefits.
It will be observed that there is no allegation that the named baseball player was a regular employee of the defendant in its usual business as a savings and loan association. The petition merely alleges that the named baseball players entered into an "oral employment and service agreement * * * whereby said baseball players advertised and promoted defendant's business."
It is commonly known and of general knowledge that there has been a great development and growth of public-playground baseball, and that many of the teams are sponsored by organizations or individuals who furnish uniforms and some equipment. The allegations of this petition appear clearly to describe such a sponsoring by defendant.
The instant case is analogous in many respects with the case of Rogers v. Allis-Chalmers Mfg. Co., 153 Ohio St. 513, 92 N.E.2d 677, 18 A.L.R. (2d), 1363, except that in that case the player involved was a regular employee of the company during regular working hours but was playing golf after his working hours in an industrial league organized by the Y.M.C.A. As stated in the syllabus of that case, "the company received publicity from its participation in the golf league, furnished shirts with the company's name on them to the players, paid the green fees and gave a banquet at the end of the year with distribution of trophies for athletic prowess." In an action against the company by a third party seeking recovery for injuries suffered when the golf player drove a ball which hit the plaintiff, it was held that "the company was not liable, under the rule of respondent superior, for such injuries."
In the Allis-Chalmers case, Stewart, J., at page 527, said:
"Then, too, in order for the rule of respondeat superior to operate, the principal or master must have the power of control or direction over the conduct of the servant. The rule has never been better stated than as follows in paragraph four of the syllabus in the case of Clark v. Fry, 8 Ohio St. 358, 72 Am.Dec., 590:
"`The rule of respondent superior, as its terms import, only arises out of the relation of superior and subordinate, is applicable to that relation wherever it exists, as between principal and agent, or master and servant, is coextensive with it, and ceases when that relation ceases to exist; and the reason of it is to be traced to the power of control and direction, which the superior has a right to exercise, and which, for the safety of others, he is bound to exercise over the acts of his subordinates.'"
We conclude from the amended petition that the defendant, by merely furnishing members of a team with uniforms and equipment with which to play baseball, neither exercised nor had a right to exercise any direction or control over the conduct or actions of the baseball players.
It will be noted that in the Allis-Chalmers case the question presented was, as stated by Stewart, J., on page 521, "whether the trial court was justified in directing a verdict for defendant at the conclusion of plaintiff's opening statement to the jury."
In the instant case the question is whether the trial court was justified in sustaining a demurrer to plaintiff's amended petition and in entering final judgment for the defendant.
Recognizing the obligation of the court to give plaintiff's amended petition the construction most favorable to plaintiff, we nevertheless conclude that allegations that a company furnished shirts or uniforms which bore the name of the company and furnished equipment for recreation to members of a baseball team under a so-called "oral employment and service agreement" are insufficient to support a pleaded conclusion of agency. Under the rules stated, the petition is thereby rendered subject to a demurrer.
The judgment of the Court of Appeals is hereby reversed, and that of the Common Pleas Court affirmed.
Judgment reversed.
WEYGANDT, C.J., HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.