Littler v. Voigt , 21 Ohio App. 285 ( 1925 )

George Littler, as plaintiff, brought suit in the court of common pleas of this county against Charles A. Voigt, as defendant, to recover damages for personal injuries sustained by the plaintiff, and for injury to the motorcycle on which he was riding when he was struck by a Ford motor car driven by Eldon Voigt, son of the defendant. Upon trial in the court below a verdict was directed for the defendant, at the conclusion of the plaintiff's evidence, and the plaintiff thereupon prosecuted error, seeking a reversal of the judgment entered below.

The sole question in the case is whether or not there is a scintilla of evidence tending to show that the son was, at the time of the collision, the agent of the father, acting within the scope of his authority.

One who owns an autmobile, whether purchased for the use of his family or not, is not liable merely because a member of his family uses it for his own purposes, and, while so using it, by his negligence directly causes injury to a third person. Elms v.Flick, 100 Ohio St. 186, 126 N.E. 66; Bretzfelder v. Demaree,102 Ohio St. 105, 130 N.E. 505; Stumpf v. Montgomery,101 Okl., 257, 226 P. 65, 32 A.L.R., 1490; Landry v. Richmond,45 R.I. 504, 124 A. 263, 32 A.L.R., 1500, and case note.

Where a son, while driving an automobile belonging to his father, and maintained by the latter for the use of himself and the members of his family, operates the car so as to injure a third person under such circumstances as to constitute actionable negligence on the part of the son, the father is not liable therefor to such third party, unless the son, at the time, was the agent or servant of the father, acting within the scope of his authority in the operation of the car. Elms v. Flick, supra.

It is claimed, however, in this case, by the plaintiff in error, that, under Section 7763, General Code of Ohio, the parent is required to send his child, of compulsory school age, who is under his charge, and not employed on an age or schooling certificate, to a public, private, or parochial school for the full time the school attended is in session, which shall in no case be less than 32 weeks per school year, and that compulsory school age shall mean 6 to 18 years of age. As the son was under 17 years of age, he would come within the terms of this provision, and, in reaching a conclusion in this case, we may assume that the contention of the plaintiff in error is correct, and that if the father in sending his son to school authorized the son to drive the father's automobile in going to and from school, the son would, in making such trips, be engaged in the business of the father.

There is no evidence in the case tending to show that the son, on the occasion in question, was expressly authorized to take the automobile of his father for the purpose of going to and returning from school.

Was there a scintilla of evidence to show that the son had implied authority for such purpose? It appears from the uncontradicted evidence in the record that the father had given the mother authority to give permission to the son from time to time to use the automobile, and that the father had expressly forbidden the son to use the automobile without permission from either the father or the mother. There is evidence tending to show that the son had used the automobile twice without such permission; one instance being the time of the collision in question, and the other a short time previous thereto. For the use of it in the latter instance the father rebuked the son. Even though the father had expressly forbidden the use of the automobile by the son for the purpose of going to and returning from school, yet, if thereafter he acquiesced in and consented to such use to any extent, and such acquiescence and consent continued up to the time in question, there would be some evidence tending to show implied authority. The record fails to show any such acquiescence and consent on the part of the father in the use of the automobile for the purposes claimed as would constitute a scintilla of evidence upon the question whether or not the son was acting as the agent or servant of the father within the scope of his implied authority at the time of the collision.

The court below properly directed a verdict for the defendant. The judgment will be affirmed.

Judgment affirmed.

RICHARDS and YOUNG, JJ., concur.