Atlantic & Pacific Tea Co. v. Davis

Ohio Court of Appeals

Atlantic & Pacific Tea Co. v. Davis

167 N.E. 613, 32 Ohio App. 100, 7 Ohio Law. Abs. 280, 1929 Ohio App. LEXIS 585

CourtOhio Court of Appeals

DecidedFebruary 11, 1929

DocketNo 9439

StatusPublished

This text of 167 N.E. 613 (Atlantic & Pacific Tea Co. v. Davis) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Atlantic & Pacific Tea Co. v. Davis, 167 N.E. 613, 32 Ohio App. 100, 7 Ohio Law. Abs. 280, 1929 Ohio App. LEXIS 585 (Ohio Ct. App. 1929).

Pincite

Opinion

*281 SULLIVAN, PJ.

It is argued that the record upon this point is insufficient to make the company liable because there is no application of the doctrine applying to master and servant, or to put it another way, to the principle of respondeat superior, and many authorities are quoted by learned counsel for defendant below, to support this contention, but it must not be forgotten that there is some substantive evidence in the record at least tending to show that the son in question had previously worked at the store and had performed acts of a similar nature for the clerk or manager and that he therefore could be characterized in law as a servant and employe of the defendant.

Keeping in mind that the former employment by the manager of the son on previous occasions remained unchallenged, it follows as a circumstance and inference that the clerk was acting within the scope of his authority, especially when we consider that to apply a different theory would be to establish a doctrine that would approve of the authority exercised in the case at bar by the manager to the detriment and danger of a patron, and customer of the store, who might be injured as a result of the act imposed upon the third person by one who is unquestionably in sole authority upon the premises.

It is apparent from the record that the open hatchway was in plain view of the manager and from this fact in the record it is unreasonable to conclude that it does not attach itself directly to the 'manager himself, independent of the order that was given to the son of the customer to open the trap door in the floor.

Our Supreme Court, under circumstances similar to those of'the case at bar, in the case of Schnable, a minor vs Cleveland, Chicago & St. Louis Railroad Co., 102 OS. 97, has laid down this ..doctrine and we think it applicable to the instant case.

It is our unanimous judgment that the doctrine in Ohio applicable to the facts in the record is laid down in Schnable supra, and governs this case.

Thus holding, the judgment of the Common Pleas Court is hereby affirmed.

Vickery and Levine, JJ, concur.

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*281 SULLIVAN, PJ.

It is argued that the record upon this point is insufficient to make the company liable because there is no application of the doctrine applying to master and servant, or to put it another way, to the principle of respondeat superior, and many authorities are quoted by learned counsel for defendant below, to support this contention, but it must not be forgotten that there is some substantive evidence in the record at least tending to show that the son in question had previously worked at the store and had performed acts of a similar nature for the clerk or manager and that he therefore could be characterized in law as a servant and employe of the defendant.

Keeping in mind that the former employment by the manager of the son on previous occasions remained unchallenged, it follows as a circumstance and inference that the clerk was acting within the scope of his authority, especially when we consider that to apply a different theory would be to establish a doctrine that would approve of the authority exercised in the case at bar by the manager to the detriment and danger of a patron, and customer of the store, who might be injured as a result of the act imposed upon the third person by one who is unquestionably in sole authority upon the premises.

It is apparent from the record that the open hatchway was in plain view of the manager and from this fact in the record it is unreasonable to conclude that it does not attach itself directly to the 'manager himself, independent of the order that was given to the son of the customer to open the trap door in the floor.

Our Supreme Court, under circumstances similar to those of'the case at bar, in the case of Schnable, a minor vs Cleveland, Chicago & St. Louis Railroad Co., 102 OS. 97, has laid down this ..doctrine and we think it applicable to the instant case.

It is our unanimous judgment that the doctrine in Ohio applicable to the facts in the record is laid down in Schnable supra, and governs this case.

Thus holding, the judgment of the Common Pleas Court is hereby affirmed.

Vickery and Levine, JJ, concur.

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Bluebook (online)

167 N.E. 613, 32 Ohio App. 100, 7 Ohio Law. Abs. 280, 1929 Ohio App. LEXIS 585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atlantic-pacific-tea-co-v-davis-ohioctapp-1929.