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Labadie v. Semler6/1/1990
liam's education.
Appellant contends that Robert Semler should have submitted a legal document to the court showing that he did not have custody of William. However, the statute sets forth no such requirement. Based upon our review of Robert and Patricia Semler's testimony in this case, we find that there was sufficient evidence upon which the trial court could have ruled that Robert Semler was not liable under R.C. 3109.10. Accordingly, Labadie's second assignment of error is found not well taken.
Finally, in her third assignment of error, Labadie contends that the court erred in overruling her evidentiary objections.
Labadie's counsel first objected to the direct examination of Patricia Semler's sister, Judy Moon. Moon testified that she and Patricia encountered appellant in a bar approximately three months after the snowball incident. Moon testified that appellant walked into the bar and began yelling obscenities at Moon and Patricia Semler. At that point in the trial, Labadie's counsel objected on the basis of relevancy. The court overruled the objections of Labadie's counsel.
Labadie's counsel's next objection came during the direct examination of Patricia Semler. Patricia testified that someone threw eggs on her car. Patricia further testified that, in her opinion, Regina Labadie was responsible for the eggs.
It appears from the record that the Semler's counsel was attempting to demonstrate that Regina Labadie was capable of antagonizing Patricia Semler. This would have helped the Semlers' contention that Regina Labadie verbally provoked William Semler into throwing the snowball, that is, that Regina Labadie was contributorily negligent. In that we have already determined that William Semler committed an intentional tort against Regina Labadie, we note that it is well-settled law that mere words of provocation do not justify an assault and battery. Mahoning Valley Ry. Co. v. DePascale (1904), 70 Ohio St. 179, 186, 71 N.E. 633, 635. Therefore, the court's rulings on Labadie's objections constituted harmless error, if error existed at all. Accordingly, appellant's third assignment of error is found not well taken.
On consideration whereof, the court finds substantial justice has not been done the party complaining, and the judgment of the Lucas County Court of Common Pleas is reversed. This cause is remanded to said court for furthesproceedings not inconsistent with this decision. It is ordered that appellee pay court costs of this appeal.
Judgment reversed and cause remanded.
HANDWORK, P.J., GLASSER and MELVIN L. RESNICK, JJ., concur.
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