Strouse v. Baltimore & O. R. Co.

• Decision Date: 31 October 1944
• Citation: 76 Ohio App. 327,64 N.E.2d 257
• Court: Ohio Court of Appeals
• Parties: STROUSE et al. v. BALTIMORE & O. R. CO.

64 N.E.2d 257

76 Ohio App. 327

STROUSE et al. v. BALTIMORE & O. R. CO.

Court of Appeals of Ohio, Ninth District, Wayne.

October 31, 1944

Syllabus by the Court.

1. The relation of principal and agent or that of master and servant does not necessarily arise from the fact that a wife owns the automobile which her husband is driving and in which she is a passenger.

2. A husband driving his wife's automobile, even with the wife present, may be presumed, in the absence of evidence to the contrary, to be in control of the car and solely responsible for its operation.

Marie S. Schaffter and Weimer & Miller, all of Wooster, for appellants.

Harrington Huxley & Smith, of Youngstown, and Starn & Etling, of Wooster, for appellee.

DOYLE Judge.

This is an action of tort to recover for personal injuries and property damage received by appellants' intestate on December 18, 1940, in Wayne county, Ohio, through the alleged negligence of the Baltimore & Ohio Railroad Company in the operation of its business. The question of law to be determined relates to the right of the trial court to decide as a matter of law, as it did, upon the pleadings and opening statement of counsel, the nonliability of the railroad company to this appellant.

The petition relates that the decedent was the owner of and a passenger in an automobile operated by her husband when it was struck by appellee's train at a grade crossing.

The opening statement of appellants' counsel in part was: 'We expect the evidence to show that this woman was a passenger in the automobile that her husband was driving, that he was not her agent; that they were going to their home from visiting; that they were going on a trip they were required to make; that they drove up to the track stopped and looked, and started on, but the train approached at a speed of about seventy miles or eighty miles per hour and before they could get their vehicle across the tracks they were struck * * *.'

The trial court in directing a verdict for the defendant at the conclusion of the opening statement of counsel, apparently concluded as a matter of law that the fact of ownership of the automobile in the wife, coupled with her presence in the car operated by her husband, was sufficient to establish the husband's agency, and that therefore any negligence of the husband was in law her negligence, under the rule of respondeat superior.

In our consideration of this case, examination has been made of the record to determine whether the charge made against the railroad is sufficient, if proved, to require the submission of the issue of negligence to a jury.

We are of the opinion that it is sufficient.

Consideration has likewise been given to the question of...