Motorists Mut. Ins. Co. v. Bill

• Decision Date: 07 December 1978
• Docket Number: No. 78-381,78-381
• Citation: 56 Ohio St.2d 258,10 O.O.3d 398,383 N.E.2d 880
• Parties: , 10 O.O.3d 398 MOTORISTS MUTUAL INSURANCE CO. et al., Appellees, v. BILL et al., Appellants.
• Court: Ohio Supreme Court

Page 258

56 Ohio St.2d 258

383 N.E.2d 880, 10 O.O.3d 398

MOTORISTS MUTUAL INSURANCE CO. et al., Appellees, v. BILL et al., Appellants.

No. 78-381.

Supreme Court of Ohio.

Dec. 7, 1978.

Syllabus by the Court

1. As used in R.C. 3109.09, which section permits the bringing of an action for the recovery of compensatory damages from parents having custody and control of a minor under the age of 18 years who willfully damages the property of an owner, "willfully damages property" means the intentional doing of the act which occasions the damage and resulting loss, coupled with the intent or purpose of causing the damage. Under R.C. 3109.09, in order that parents may be found liable for the tortious acts of their minor children, both the initial act, as well as the subsequent damage, must be found to have been intentional.

2. A subrogated insurer may, pursuant to R.C. 3109.09, maintain an action against the parents in custody and control of a minor who willfully damages the property of an owner.

This cause involves an appeal of a judgment of the Court of Appeals which reversed the trial court's judgment in an action brought by an owner of an automobile and his insurer for damages alleged to have been sustained to the owner's automobile occasioned by the negligent driving of one Michael Bill, a minor. The complaint named as defendants both the minor, Michael, and his parents, Anthony and Ann Bill. The claim for recovery against the parents was brought pursuant to R.C. 3109.09, which gives the owner of property that has been "willfully damage(d)" by a minor, the right to bring an action against the parents having custody and control of that minor.

The facts, in brief, giving rise to the filing of this action, and the procedure giving rise to this appeal, are that Michael Bill, then a minor 16 years of age, was at 4:00 a. m. on the morning of June 23, 1973, driving a Cadillac sedan on Vestry Avenue in Cleveland, Ohio, accompanied by three other young men. Police officers in a patrol car observed the automobile and its occupants, and, desiring to check the operator's driver's license, turned on the flashing red lights of the cruiser and pulled the Cadillac over to the curb. At this point, the driver of the Cadillac, Michael, pulled away from the cruiser and the police gave chase with red lights flashing and siren activated. After approximately a mile and a half chase, during which the Cadillac was driven at a speed up to 75 m.p.h., and driven through a number of stop signs and red traffic lights, the automobile collided with the automobile of the plaintiff, Jehad A. Jabar, which was parked at the curb, occasioning damage to plaintiff's automobile in excess of $600.

Plaintiff's insurance company compensated him for the damages, with the exception of $100 which was the deductible amount under the policy. Both plaintiff and Motorists Mutual Insurance Company, the insurer, brought an action for recovery of the damages against the minor, and joined Michael's parents in such action pursuant to R.C. 3109.09. The trial court, after hearing the evidence, entered a judgment against Michael for the full amount of the damages claimed, and upon motion dismissed the complaint against the parents. The Court of Appeals, by a majority decision, reversed the dismissal and remanded the cause.

The cause is now before this court upon the allowance of the defendant-parents' motion to certify the record.

Weltman, Strachan & Green Co., L. P. A., and Robert J. Olender, Cleveland, for appellees.

Sheila Tew, Cleveland Heights, for appellants.

HOLMES, Justice.

The first basic issue presented by this appeal is whether the acts of the minor under the facts of this cause, where the minor being pursued by the police and driving an automobile at a high rate of speed, ran through stop signs and collided with and damaged the plaintiff's parked automobile, constitute, under the intent of R.C. 3109.09, "willfully" damaging the property of the plaintiff.

The second basic issue presented by this appeal is whether an action for any such willful damage to property, if so found, may under this statute be brought against the parents of the minor by the owner's subrogated insurance company.

I.

This cause presents the initial opportunity for this court to construe certain aspects of R.C. 3109.09, which provides for the vicarious liability of parents for the destructive acts of their children.

The wording of the statute at the time applicable to this cause was as follows:

"Any owner of property is entitled to maintain an action to recover compensatory damages in a civil action in an amount not to exceed two thousand dollars and costs of suit in a court of competent jurisdiction from the parents having the custody and control of a minor under the age of eighteen years, who willfully damages property belonging to such owner. A finding of willful destruction of property is not dependent upon a prior finding of delinquency of such minor.

"Such action shall be commenced and heard as in other civil actions for damages."

Under the common law, parents were not held liable in damages for the torts of their minor children solely because of the parent-child relationship. Generally, the only recovery was where the parent participated in the tort, or where there was some relationship established, such as principal and agent, or master and servant. However, there were instances of allowing vicarious recovery from the parent when the parent knew of the malicious, reckless, or mischievous propensities of his minor child and failed reasonably to control it. 59 American Jurisprudence 2d 231, 234, Parent and Child, Sections 130, 133; Annotation, 8 A.L.R.3d 612, 614.

Over the years, many states, including Ohio, have enacted statutes in derogation of the common law which has imposed upon parents legal responsibility for the consequences of the tortious acts of their children which resulted in damage to others.

Ohio originally enacted such a parental responsibility law R.C. 3109.09, in 1965 by the passage of Am.Sub.H.B. No. 159 (131 Ohio Laws 689). The maximum of the parental liability under the Act was $250. The statute was amended in 1967 to increase the limit of liability to $800, and, in 1969, the statute was amended to increase the liability to $2,000. The 1969 amendment also substituted the word "compensatory" for the word "actual" in describing the nature of the damages which could be recovered. The statute was once again amended, effective May 23, 1978 (Am.H.B. No. 456), raising the liability to $3,000, added "theft" as a compensable act, and removed the parents of married minors from responsibility under the Act.

Although there is no official legislative history giving more definitive insight into the legislative intent in the passage of R.C. 3109.09, some light may be shed upon its purposes by the following comments in Laven, Liability of Parents for the Willful Torts of Their Children Under Ohio Revised Code Section 3109.09, 24 Cleve.State L.Rev. 1, 2, at footnote 2:

"Unfortunately, there is no legislative history available which might reveal the legislature's purpose in enacting Section 3109.09 of the Ohio Revised Code * * * . The purposes expressed in enacting similar parental liability statutes in other states have been to curb juvenile delinquency by making parents more responsible with respect to the behavior of their children; to compensate the injured property owner; or to both curb delinquency and provide a means of compensation. * * * "

In this same regard, the following comment on the general legislative basis or intent in the passage of these types of statutes is to be found in Annotation, 8 A.L.R.3d 614, at section 1(a):

"* * * (These statutes were) (p)resumptively enacted for the purposes of attempting to restrain juvenile delinquency, vandalism, and malicious mischief, these statutes, though revealing some variation in language and effect, were substantially similar in their tenor and effect. * * * "In most, though not all, jurisdictions the maximum amount of the recovery from the offending minor's parents was limited, irrespective of the extent of the actual damage, to a rather nominal sum which ranged generally from $250 to $500. It would seem a not unreasonable inference from this limitation that it was the legislative intent in passing these statutes to impose a penalty upon the parents of a destructive child, rather than to compensate the injured party."

While the language of the current version of this Ohio parental responsibility statute refers to "compensatory damages" as that which may be recoverable by an owner, the limitation of the monetary amounts, at least as initially enacted, would not reasonably suggest that the sole purpose of the enactment was to compensate the owner for his losses. It is reasonable to assume that the General Assembly had a companion purpose for the passage of such legislation, and that could be the thought and desire of making parents more responsible for the behavior of their minor children, and to impose a form of penalty upon the parents of a destructive child. Whether the enactment of this section of law has effected any such noble purpose of combating juvenile delinquency may be questionable, but that does not lessen the probability that this was indeed one of the legislative purposes of the bill.

Statutes of this general nature have been construed in a number of manners by the courts of other jurisdictions. In the main, the variations in the holdings have been based upon the particular language of the statute involved. However, we believe it to be the general view that these laws having been enacted in derogation of the common law, and having not been enacted primarily as a remedial measure, but equally as a form of penalty, courts should construe the liability to be imposed upon the parent in a strict, rather than a liberal, manner. See Annotation, 8 A.L.R.3d 616, Section 3.

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