Opinion
No. 38394
Decided April 22, 1964.
Summary judgment for defendant — Action for personal injuries — Assumption of risk — Appeal — No bill of exceptions — Reviewing court must affirm.
In a personal injury case, where the trial court grants summary judgment for the defendant upon the pleadings, affidavit and deposition upon the ground of assumption of risk, and the plaintiff appeals and no bill of exceptions is filed, the reviewing court must affirm the judgment of the trial court, for the reason that the reviewing court can not be certain that it has before it on the record all the documents, papers, depositions, affidavits and admissions which the trial court had before it and considered in reaching a decision.
CERTIFIED by the Court of Appeals for Franklin County.
The plaintiff was injured when his foot slipped while he was working on a conveyor platform at the defendant's processing plant, unloading cans of milk from the truck of his employer onto the conveyor platform.
On the day the plaintiff alleges that he was injured, the platform was wet with milk spilled from the cans which had been unloaded, and the plaintiff's foot slipped, causing him to fall and sustain certain alleged injuries.
The plaintiff, in his petition, alleges that the defendant was negligent in that it permitted the surface of the platform to become worn and smooth and to remain in an unsafe and dangerous condition, and that it allowed quantities of milk, cream and water to accumulate and to remain on the surface of the platform, thereby rendering the platform highly slippery, unsafe and dangerous, which conditions were known or should have been known to the defendant.
The defendant, in its answer, pleads the defenses of assumption of risk and contributory negligence.
The defendant took the plaintiff's deposition. Plaintiff filed an affidavit. Defendant moved for a summary judgment under the provisions of Section 2311.041, Revised Code. The trial court sustained the motion and entered judgment for the defendant, on the grounds of assumption of risk.
The Court of Appeals reversed the judgment of the Common Pleas Court and certified the record to this court on the ground of conflict with the cases of Allstate Ins. Co. v. Dye (1960), 113 Ohio App. 90, and Acosta v. Echt (1962), 117 Ohio App. 178, both decided by the Eighth District Court of Appeals.
No bill of exceptions was filed in this cause.
Messrs. Dobbs, Frick Finnegan and Mr. Bruno E. Voltolini, for appellee.
Messrs. Wright, Harlor, Morris, Arnold Glander and Mr. Charles E. Brant, for appellant.
The first question presented by this appeal is whether the Court of Appeals erred in holding that a bill of exceptions was not necessary.
The plaintiff relies upon Section 2505.08, Revised Code, which provides that "the clerk * * * shall * * * prepare and file in the court to which the appeal is taken, a transcript of the docket or journal entries, with such original papers or transcripts as are necessary to exhibit the error complained of."
Plaintiff argues further that Section 2311.041, Revised Code, paragraphs (B) and (C), so limits the documents and papers to be considered by the court in ordering a summary judgment that a bill of exceptions is not necessary.
In the ordinary civil case, depositions or affidavits relating to the facts in the case do not become a part of the record on appeal simply because they are filed in the court below. Depositions must be incorporated into a bill of exceptions to be brought on the record before the reviewing court. Knowlson v. Bellman, 160 Ohio St. 359, in the fifth paragraph of the syllabus, holds:
"Where a decree of the Court of Common Pleas is appealed from to the Court of Appeals on questions of law and fact and that Court of Appeals hears and determines the controversy de novo, the latter court becomes the trial court, and where its decree is brought before the Supreme Court for review and there is no bill of exceptions in the Supreme Court prepared and filed in conformity with statutory requirements, which bill is necessary to disclose the errors complained of, the Supreme Court will either dismiss the appeal or affirm the decree of the Court of Appeals."
This rule should be applied in summary-judgment proceedings.
It is only in this way that a reviewing court can know what the trial court considered in reaching its conclusions upon the questions of law which it decided. Only where there is an authenticated bill of exceptions signed by the trial court and certified, can a reviewing court be certain that it has before it on the record all the documents, papers, depositions, affidavits and admissions which the trial court had before it and considered in reaching a decision.
Since this court is of the opinion that the Court of Appeals was in error in holding that a bill of exceptions was not necessary, this court need not consider other assignments of error.
The judgment of the Court of Appeals is, therefore, reversed, and the judgment of the Common Pleas Court is affirmed.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, GRIFFITH, HERBERT and GIBSON, JJ., concur.
MATTHIAS, J., not participating.