Elms v. Flick
| Decision Date | 24 June 1919 |
| Docket Number | 16152 |
| Citation | 100 Ohio St. 186,126 N.E. 66 |
| Parties | Elms v. Flick. |
| Court | Ohio Supreme Court |
Negligence-Automobiles-Road laws-Section 6350, General Code - "Road" defined - Charge to jury - Respondeat superior-Master and servant-Parent and child-Liability,for torts determined, how.
1. The term "the road" as used in Section 6310, General Code, should be construed to mean the improved portion of the road, where it is disclosed that it is of ample width to permit the passing of automobiles.thereon with safety.
2. In an action brought to recover damages for injuries resulting from a collision of automobiles upon a highway improved to a width of fourteen feet, with a dirt road at the side 'thereof, it is error to instruct 'the jury that "'the road' means the road as traveled by.the public from gutter to gutter."
3 Under the principle of respondeat superior the employer is liable for damages caused by the negligence of his employe while engaged in the business of the former, but such principle has no application where the owner and driver do not sustain to each other the relation of master and servant or principal and agent. (White Oak Coal Co. v. Rivoux, Admx., 88 Ohio St 18, approved and followed.)
4. The mere fact of relationship as father and son does not give rise to liability of the former for the negligent acts of the latter. The basis of liability is the relation of principal and agent, or master and servant, and must be governed by the rules applicable to such relation.
5. The owner of an automobile, purchased for the use of his family is not liable for injuries caused by the negligent operation thereof by his adult son, living at home as a member of the family, who upon the occasion of such injury was not in any wise agent of or acting for the father, but was using such automobile for his own individual and exclusive purpose.
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The plaintiff in error, who was plaintiff in the trial Court brought suit to recover for personal injuries, and damage to his automobile, which he alleged resulted from a collision of his automobile and that of the defendant as they were about to pass on a country highway and alleged that it was caused by the negligence of the defendant in running at a high and dangerous rate of speed and in failing to keep on the proper side of the road and allow sufficient clearance for the plaintiff's automobile.
The defendant denied negligence on his part and asserted that the collision resulted from the unlawful manner in which the plaintiff drove his automobile, in that the plaintiff approached defendant's automobile at a high, dangerous and un lawful rate of speed, and on the wrong side of the road; and defendant by cross-petition sought damages from the plaintiff for injuries to his automobile, which he claimed resulted from said negligence of the plaintiff.
The trial of the case resulted in a verdict and judgment for the plaintiff, which was reversed by the court of appeals, and error is now prosecuted in this court to reverse that judgment.
Mr. John A. Fithian and Mr. G. F. Ohl for plaintiff in error. Mr. W. L. Countryman, for defendant in error. Messrs. Hoyt, Dustin, McKeehan & Andrews and Mr. C. M. Horn, amici curiae on behalf of defendant in error.
MATTHIAS, J. Two questions, each of which are of prime importance, arose upon the trial of this case, and they are presented for our consideration. The first involves the application to the conditions disclosed by the record in this ease, of the statute usually denominated "the rule of the road."
The road upon which these automobiles were traveling when they met in collision had been improved for a considerable distance by paving with brick fourteen feet on the east side thereof. The dirt or unimproved portion of the road varied somewhat in width, being from a foot or two to possibly eight feet, and it was about this maximum width where the collision occurred.
The plaintiff was traveling north and the defendant's automobile was being driven south. The record discloses that these cars could have passed each other on the improved portion of the road with a clearance of substantially three feet, and therefore it was entirely consistent with safety for both cars to remain on the improved roadway.
Evidence was introduced tending to prove that the automobile of the defendant was driven sufficiently to the right that in passing its right wheels were off the pavement, and therefore no part of the machine was on the east half of the paved portion of the road. If that evidence was true, then the automobiles met in collision at a point west of the center of the paved portion of the road, and it would follow that plaintiff's car was then to his left of the middle of the improved road.
The definition of "the road" therefore became quite material, if indeed it was not determinative of the whole case. The court, after having stated to the jury that the defendant was required to give plaintiff half of the road, added "'the road' means the road that is traveled by the public from gutter to gutter."
In view of the conditions above described we are of the opinion that such instruction was erroneous and prejudicial, for persons traveling north would thus be permitted to usurp the use of eleven feet of the brick road, substantially the width of two automobiles, and leave for the south-bound vehicle less than three feet of the improved road, while if each kept to the right side thereof there was ample room for both cars traveling on the improved highway to pass with perfect safety.
It must have been contemplated by the public authorities, in constructing an improvement of such width as to fully and adequately care for traffic, that it would be unnecessary for vehicles traveling south to leave it in passing. It certainly was not constructed as a one-way road and intended for the exclusive use of those traveling north, and it is difficult to see why the south-bound traveler should be required to vacate it and turn into the dirt road. The law should not be so interpreted and applied as to lend aid and encouragement to the "road hog." He needs none. Commendable progress has been made in the improvement of the highways of this state. Such improvements have been made, and will hereafter be constructed more rapidly than heretofore, in answer to the increasing demand for highways, solid and substantial, which may be used for all purposes the year round. They are constructed for the use of the public, all who desire to travel over them, and, when expense is incurred tO build them of ample width to accommodate the traffic and permit vehicles to safely pass thereon, one should not be permitted to so use them as to exclude another or crowd him over on to a dirt road which is likely to be in an indifferent condition; for it would seem unnecessary that any track in addition to such improvement be maintained and kept in good condition for travel.
The other question of law arises from the fact that at the time of the collision the defendant's automobile was being driven by his son, Roy Flick, 23 years of age, unaccompanied by the defendant or any other member of the family. It is disclosed by the record that the son, Roy Flick, lived at his father's home as a member of the family, and a portion of the time worked in his father's meat market, and that although he did not have the express permission of the father to use his touring car on the particular occasion in question he had general permission to use the car when he desired. The accident occurred about 9 o'clock in the evening; the passengers with Roy Flick were a Miss Taylor, his lady friend, and a Mr. and Mrs. Strait, all of whom were riding upon his personal invitation.
The case was submitted to the jury by the trial court upon the theory that the defendant would be responsible for the act of his son, and liable for any damage resulting from his negligence, if the defendant purchased such automobile for the use of the family and permitted the son, who was a member of the family, to drive the car, In ac- cordance with this theory of liability of the father for the tort of the son, the court refused to instruct the jury as requested, that the defendant would not be liable unless they found that Roy Flick was driving such automobile in behalf of the defendant as his personal servant or agent, or unless there had been some ratification of the act by the defendant. On the contrary the court instructed the jury as follows:
"It turns out in evidence that at the time that this car of defendant's was being driven it was driven by his son, and therefore the defendant insists that he is not responsible for the negligent act of the son. It is a conceded fact in the case, that the defendant himself had no hand or parcel in the driving of that car that night. Ordinarily a parent is not responsible for the torts or the wrongs of the child. It is immaterial whether he is a minor or adult, the parent is not responsible for the act of the child, but I say to you, as a matter of law, that if you find from the evidence that this defendant purchased this car for the use of the family, and permitted this boy to drive the car, and he was a member of the family and permitted him to drive the car on that night, then he would be responsible for his act, if there is any liability whatever in the case.'"
It is elementary that the parent is not liable for the tort of his child, whether an adult or minor, unless he participates in the fault committed by the child. He is then liable only for his own fault and neglect and not that of the child. As stated in Cooley on Torts (3 ed.), page 180:
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