Elliott v. Harding, 17634.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtMARSHALL
Citation140 N.E. 338,107 Ohio St. 501
Docket NumberNo. 17634.,17634.
Decision Date08 May 1923

107 Ohio St. 501
140 N.E. 338


No. 17634.

Supreme Court of Ohio.

May 8, 1923.

Error to Court of Appeals, Butler County.

Action by Christine Harding against Charles T. Elliott. A judgment on a directed verdict for defendant was reversed by the Court of Appeals, the case remanded, and defendant brings error. Affirmed.-[By Editorial Staff.]

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 highways.’

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 plaintiff.

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 disclosed 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.

Syllabus by the Court

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.

Where a father intrusts 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.

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.

[Ohio St. 503]

[140 N.E. 339]

W. C. Shepherd, of Hamilton, and B. F. Harwitz, of Middletown, for plaintiff in error.

Justin Harding, of Franklin, and Shotts & Millikin, of Hamilton, for defendant in error.

[Ohio St. 504]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....

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    ...Lines, Inc., 145 Ohio St. 467, 62 N.E.2d 339, 168 A.L.R. 1356; Clark v. Stewart, 126 Ohio St. 263, 185 N.E. 71; Elliott v. Harding, 107 Ohio St. 501, 140 N.E. 338, 36 A.L.R. 1128; Dicranian v. Foster, 114 Vt. 372, 45 A.2d 650; Laughlin v. Rose, 200 Va. 127, 104 S.E.2d 782; McNeill v. Spindl......
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    ...Express Corp., supra, 163 Ohio St. 484, 127 N.E.2d 355. See 27 American Jurisprudence, 518, Section 39. Thus, in Elliott v. Harding, 107 Ohio St. 501, 140 N.E. 338, 36 A.L.R. 1128, it was held that 'while an automobile is not a dangerous instrument per se, it may become such if operated by ......
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