Ross v. Burgan

• Decision Date: 20 April 1955
• Docket Number: No. 34153,34153
• Citation: 163 Ohio St. 211,50 A.L.R.2d 1275,126 N.E.2d 592,56 O.O. 218
• Parties: , 50 A.L.R.2d 1275, 56 O.O. 218 ROSS, Appellee, v. BURGAN, Appellant.
• Court: Ohio Supreme Court

Page 211

163 Ohio St. 211

126 N.E.2d 592, 50 A.L.R.2d 1275, 56 O.O. 218

ROSS, Appellee, v. BURGAN, Appellant.

No. 34153.

Supreme Court of Ohio.

April 20, 1955.

Syllabus by the Court.

1. Where the owner of a motor vehicle being driven by another is an occupant thereof, a rebuttable presumption or inference arises that the owner has control over it and that the driver is acting as his agent in operating the vehicle.

2. In the absence of evidence to rebut such presumption, any negligence of the driver in operating the motor vehicle is imputable to the owner riding therein.

The present action was commenced in the Court of Common Pleas of Summit County by Celia K. Ross to recover damages for personal injuries she alleges she sustained when the automobile she owned, driven by her husband, was rammed from behind by another car.

Early on the morning of May 21, 1950, on State Highway No. 8 in Cuyahoga County, plaintiff, her husband, Ben Ross, their teen-age daughter and plaintiff's mother were all riding together in the automobile on their way from the city of Cleveland to the city of Akron. Plaintiff was sitting in the front seat next to her husband.

The Ross car was signalled to stop by the operator or an occupant of a stalled automobile located on the right side of the highway and facing toward Akron. Ross stopped the automobile he was driving parallel or nearly parallel with the other car. Defendant, B. H. Burgan, approaching from the rear in his automobile, ran into the back of the Ross car thereby, as plaintiff claims, causing injury to her neck.

On the trial of the cause defendant testified that he saw the Ross car ahead of him and that the actions of its driver indicated he was going to proceed around the stalled automobile.

The cause was tried to the court and a jury, and among the issues submitted to the jury was that of contributory negligence on the part of plaintiff. In his general charge the trial judge said:

'Now, if Mr. Ross was negligent and that negligence proximately contributed to this accident, that negligence on his part would be of no significance whatever, unless he was acting at the time as agent for Mrs. Ross in the operation of that car. Admittedly the plaintiff, Mrs. Ross, owned the motor vehicle which her husband was driving. The property right to the motor vehicle was in Mrs. Ross. This fact, under our law, gives rise to a presumption that he was acting as her agent in the operation of the plaintiff's motor vehicle. This presumption is not a conclusive presumption, however. It is a rebuttable presumption. It may be overcome or rebutted by other evidence. But if it has not [been] rebutted by other evidence, then you shall consider he was her agent in the operation of the motor vehicle. When I speak of a presumption in this connection, I mean an inference of fact.

'The test for determining whether one person is an agent for another in this connection is whether said alleged agent has the right to exercise control over the other as to the work being done.

'* * * If the status of Mr. Ross was that of an agent for his wife, as he operated her motor vehicle, then his conduct in all respects becomes her conduct in law. In that situation she is chargeable with his driving. His driving becomes her driving in that situation and, if he was negligent in the operation of the car in that situation, his negligence becomes her negligence. On the other hand, if his status was not that of an agent for his wife in driving her motor vehicle, his conduct in the operation of the motor vehicle does not become her conduct and she would not be chargeable with it.'

A general verdict was returned for the defendant, upon which judgment was entered.

An appeal on questions of law was then taken to the Court of Appeals which reversed the judgment below and remanded the cause for a new trial on the sole ground of prejudicial error 'in submitting the issue of contributory negligence to the jury when that issue should not have been submitted.' $It is apparent that the Court of Appeals applied the principle of law it announced in the case of Strouse v. Baltimore & Ohio R. Co., 1944, 76 Ohio App. 327, 64 N.E.2d 257. A motion to certify the record in that case was overruled by this court.

The cause is now here for review and determination on its merits following the allowance of a motion to require the Court of Appeals to certify record.

Lawrence E. Appleton, Cleveland, for appellee.

Buckingham, Doolittle & Burroughs, Herman E. Rabe and Richard A. Chenoweth, Akron, for appellant.

ZIMMERMAN, Judge.

The single question for decision by this court is whether the Court of Appeals correctly held that the issue of contributory negligence on the part of plaintiff should not have been submitted to the jury, in the absence of evidence showing or tending to show that she herself was negligent.

In deciding the matter the Court of Appeals limited its decision to a factual situation wherein a husband was driving his wife's car with her as an occupant and there is no evidence indicating the relationship of principal and agent between them. The Court of Appeals conceded that if such relationship were apparent the rule of 'respondeat superior' would apply, and that any negligence of the husband in operating the automobile would be imputable to the wife.

Counsel for appellant, the defendant in the trial court, contend that 'the Court of Appeals erred in holding as a matter of law that the presence of a wife, the owner of an automobile, as a passenger therein, while it is being operated by the husband on a trip for their mutual benefit and pleasure does not present sufficient evidence of an agency relationship between husband and wife to justify the trial court in submitting the agency issue to the jury.'

In reaching its conclusion the Court of Appeals relied principally on the case of Rodgers v. Saxton, 1931, 305 Pa. 479, 158 A. 166, 168, 80 A.L.R. 280, in which, departing from the general rule prevailing in Pennsylvania, the court held:

'The relation of principal and agent or that of master and servant does not necessarily arise from the fact that the wife owns the car which her husband is driving and in which she is a passenger. * * * The husband is still the head of the family, and when he is at the wheel of that car, even with his wife [the owner of the car] present, the presumption is that he is in control of the car, and, in the absence of evidence to the contrary, he is solely responsible for its operation.' See, also, Klein v. Klein, 1933, 311 Pa. 217, 166 A. 790, and Watkins v. Overland Motor Freight Co., Inc., 1937, 325 Pa. 312, 188 A. 848, for like holdings.

The opinion in the case of Beam v. Pittsburgh Railways Co., 1951, 366 Pa. 360, 370, 371, 77 A.2d 634, 639, analyzes the Pennsylvania cases decided up to that time, wherein the owners were present in their automobiles being driven by others, and deduces the following principles therefrom:

'(1) The mere presence of the owner in an automobile while it is being driven in a negligent manner by another does not necessarily make him liable for an injury caused thereby, or impute to him the driver's negligence. * * * [The Rodgers, Klein and Watkins cases, supra, are then cited as examples.]

'(2) There is a presumption, in the obsence of any evidence to the contrary, that an owner present in his car has power to control it. * * *

'(3) The test of the owner's liability is the right of control, not whether he exercises it * * *. Indeed, the owner's very failure to exercise his control would ordinarily amount to a tacit consent on his part to the manner in which the operation was being conducted and thereby establish his liability a fortiori. * * *

'(4) In the absence of evidence to the contrary, the legal relation between the owner seated in his car and the person whom he has permitted to drive it is that of principal and agent or master and servant and therefore hs is not only liable for damages caused to a person by the driver's negligence but the driver's contributory negligence is imputable to him so as to bar his right of recovery, if he himself is injured, for damages caused by the negligence of a third person. In other words, if the negligence of the driver is imputable to him as a defendant it is also imputable to him as a plaintiff in the same situation. Rest. Torts, §§ 485, 486.'

In Ohio, the so-called family-purpose doctrine (5 American Jurisprudence, 704, Section 365; 6 Ohio Jurisprudence [2d], 518, Section 271 et seq.) is not accepted. This court has held that where the owner of an automobile permits his wife or other members of his family, presumably qualified drivers, to use his automobile there is no liability on his part for its negligent operation unless evidence is produced showing a principal-agent or master-servant relation between the absent owner and the driver at the time of an injury. Elms v. Flick, 1919, 100 Ohio St. 186, 126 N.E. 66; Bretzfelder v. Demaree, 1921, 102 Ohio St. 105, 130 N.E. 505. Compare Elliott v. Harding, 1923, 107 Ohio St. 501, 140 N.E. 338, 36 A.L.R. 1128.

Should the rule be different in this state, where an owner is present in his automobile which is being driven by another, especially where the owner is the wife and the driver her husband? This court has never directly decided that question. See Skinner v. Pennsylvania R. Co., 1933, 127 Ohio St. 69, 186 N.E. 722. And, in meeting it, we are confronted by diverse holding in other jurisdictions.

A number of courts have adopted the rule, which appeals to us as fair and reasonable, that, where an owner is the passenger-occupant of his own automobile, a rebuttable presumption or inference arises that he has the control and direction of it, and that the driver is acting as his agent in operating the car. Some representative cases are: Gochee v. Wanger, 1931, 257 N.Y. 344, 178 N.E. 553 (wife driving husband's car); Wilcott v. Ley, 1931, 205 Wis. 155, 236...