Elliot v. Harding

• Citation: 140 N.E. 338,107 Ohio St. 501
• Decision Date: 08 May 1923
• Docket Number: 17634
• Parties: Elliott v. Harding.
• Court: Ohio Supreme Court

140 N.E. 338

107 Ohio St. 501

Elliott v. Harding.

No. 17634

Supreme Court of Ohio

May 8, 1923

Negligence - Automobiles - Dangerous instrumentality - Operation by unskilled driver - Question for jury - Competency of operator - Liability of parent for son's acts - Combined negligence - Instrusting to incompetent driver and negligent operation.

1. While an automobile is not a dangerous instrument per se, it may become such if operated by one who is unskilled in its use; and, where the owner intrusts such a machine to an inexperienced or incompetent person, liability for damages may arise.

2. Where a father instrusts his automobile to his son, a youth of 14 years, unaccustomed to its use, for purposes wholly apart from any business or enterprise of the father, the question of competency is one for the jury under proper instructions.

3. In such case the liability of the owner would not rest upon ownership or agency, but upon the combined negligence of the owner and driver; negligence of the father in intrusting the machine to an incompetent driver, and negligence of the son in its operation.

-

The petition filed in the trial court alleged that on July 18 1919, defendant Charles T. Elliott, who lived about three miles south of Middletown, Ohio, and who was the owner of several automobiles, "authorized, permitted and directed his minor son, of the age of about 14 years, to have charge of and drive said automobile upon the public highway; that said minor son, on account of his youth, lack of skill, and want of experience, was incompetent to operate said automobile, and was an unfit person to be given charge and control thereof, and was a menace to persons and automobiles traveling upon the public highway."

The petition further alleged that while said automobile was in charge of said son the same was carelessly driven, and, on account of youthfulness, lack of skill, and want of experience, was driven at an unlawful and dangerous rate of speed, and that in the attempt to pass another automobile, in which the plaintiff below was riding as a passenger, a collision occurred resulting in serious damage to the plantiff.

There was no claim that the automobile was used in carrying on or aiding any business or enterprise in which the father was beneficially interested.

The testimony diclosed that the son had never used the car prior to that date, and that although he had frequently requested the use of the car such requests were always refused. The father testified that he did not know of the son's ability to drive the car, but that the son told him that he was competent, and that he permitted the son to have the use of the car entirely on the son's representations. The car was desired by the son for the purpose of meeting a visitor at the station at Middletown, a young man, and to bring him to the family residence. Permission was given on July 17, the father then starting on a journey. The car was not to be used until the next day. As to the exact instructions given, the father testified:

"I told him he could take the car to the Big Four station, get Arnold Tietig, take no one else into the car, and bring Arnold Tietig home in the car, but not touch it again."

Acting upon these instructions, the son took the car the next day went to the station, met his guest, and, instead of returning directly home, went to the home of two young ladies in Middletown, where the two ladies became occupants of the car. The guest and one of the young ladies occupied the turtleback of the car, and the other young lady occupied the seat of the Ford runabout with the son Charles Elliott, Jr. In this manner they made the trip to the Elliott home. After they had arrived at the Elliott home and the baggage of Tietig had been left there, the two young ladies took the seat of the Ford, Miss Phillips taking the driver's place, Tietig sitting upon the right door, and young Elliott standing on the left running board. They again started toward Middletown and after they had proceeded some distance, Miss Phillips still driving, they overtook the car in which the plaintiff was riding, and in some manner the collision occurred from which resulted the injuries claimed to have been sustained by the plaintiff.

At the trial, at the close of plaintiff's testimony, the court directed the jury to return a verdict in defendant's favor. Upon error being prosecuted to the Court of Appeals, the judgment of the common pleas court was reversed, and the cause remanded for new trial.

Mr. W. C Sheperd and Mr. B. F. Harwitz, for plaintiff in error.

Mr. Justin Harding and Messrs. Shotts & Millikin, for defendant in error.

MARSHALL, C. J.

In order that the bench and bar may not misunderstand the scope of this decision, or misconstrue the breadth of the principles herein declared, it is deemed proper to state what this action is and what it is not. While the petition contains an allegation of the relation of parent and child there is no allegation, nor is there any proof, that the son was engaged in any business or enterprise in which the father was beneficially interested. The allegations of the petition do not permit any recovery in this case upon the mere basis of the relation of father and child. Even if such a contention were made, it definitely settled by the former decisions of this court that, in a case where the father is the owner of a machine which is being used by the son solely for the son's pleasure, there is no liability on the part of the parent on the basis of relationship alone, and that in all such cases it is necessary to establish the further relation of principal and agent, or master and servant, and that claims for damages are governed by the rules applicable to such relations only. This is clearly the pronouncement of this court in the case of Elms v. Flick, 100 Ohio St. 186, 126 N.E. 66.

Neither is the allegation of the relation of parent and child asserted in this case as the basis of recovery on the ground of the doctrine of "family purposes."...