Travelers Indem. Co. v. Brooks

• Decision Date: 18 March 1977
• Citation: 14 O.O.3d 19,395 N.E.2d 494,60 Ohio App.2d 37
• Parties: , 14 O.O.3d 19 TRAVELERS INDEMNITY COMPANY, Appellee, v. BROOKS et al., Appellants.
• Court: Ohio Court of Appeals

Page 37

60 Ohio App.2d 37

395 N.E.2d 494, 14 O.O.3d 19

TRAVELERS INDEMNITY COMPANY, Appellee, v. BROOKS et al., Appellants.

Court of Appeals of Ohio, Sixth District, Lucas County.

March 18, 1977.

Syllabus by the Court

1. Statutes which render parents liable for their children's malicious damage, being in derogation of common law, must be strictly construed and should not be extended by implication.

2. R.C. 3109.09 creates an exception to the common law principle that liability will not be imposed upon parents for the intentional torts of their minor children.

3. R.C. 3109.09 must be strictly construed and its application limited to those situations involving Intentional acts of destruction.

Charles J. Smith, Toledo, for appellants.

John H. Moor and James D. Turner, Toledo, for appellee.

CONNORS, Judge.

This is an appeal by the defendants from the decision of the Toledo Municipal Court in a suit brought by the Travelers Indemnity Company against Donald R. Brooks, a minor, and his parents, David R. and Marilyn Brooks, and a minor, David E. Hoyt and his parents, Bryan A. and Betty J. Hoyt, and a minor, Richard Phillip Shultz and his parents, Richard C. and Carol M. Shultz. The trial court dismissed minors Hoyt and Shultz and their parents, and awarded a judgment in the amount of $1,900.46 in favor of the plaintiff-appellee.

Prior to November 6, 1974, the plaintiff had issued to Nancy Polewski a policy of insurance which provided coverage on a Ford automobile against loss by reason of theft: the policy also contained a provision that the insurance company would be subrogated to all claims, demands and causes of action arising under it to the extent of the payment made: the policy was in full force and effect on November 6, 1974. The automobile in question was titled in the name of Nancy Polewski's daughter, Christine Polewski.

Sometime prior to November 6, 1974, Christine Polewski took her automobile, to the Whitmer High School Auto Mechanics Class for repairs. On November 6, 1974, the defendant, Donald R. Brooks, a minor and a member of the auto mechanics class, took the car without permission and drove it around the block, returning afterwards to the student parking lot.

At about this same time, the defendants David E. Hoyt and Richard Shultz, minors, were passing through the parking lot on the way to their next class. Hoyt, a friend of Brooks, saw him in the parked vehicle and the two engaged in a short conversation. Defendant Richard Shultz did not know defendant Brooks and did not talk with him. Brooks asked Hoyt if the pair would like to go for a ride and they accepted. Brooks then drove the vehicle off the school premises and was subsequently involved in a collision with a vehicle, extensively damaging the automobile owned by Christine Polewski. Subsequently, through a period of transactions, including a payment to both Nancy Polewski and her daughter, Christine Polewski, the plaintiff under the terms of its policy, paid the sum of $1,900.46.

Appellants' first assignment of error is that the trial court, in awarding damages to The Travelers Indemnity Co., as subrogee, committed error. We find the first assignment of error not well taken. The appellant admits that a certificate of title was put in evidence showing that Christine Polewski, one of the insureds, was the owner of the car. The insurance policy was issued in the name of Christine's mother, Nancy. Payment was made as required by the insurance policy on this claim under the contract of the policy. Travelers became subrogated pursuant to the subrogation clause in the insurance policy once that payment was made. Even without any subrogation clause, Travelers had an equitable right of subrogation once the payment was made. See 30 Ohio Jurisprudence 2d 811, 812, Insurance, Section 886, which in part provides:

"The right of an insurer to be subrogated to the rights of the insured may be either the right of conventional subrogation that is, subrogation by agreement between the insurer and the insured or the right of equitable subrogation, by operation of law, upon the payment of the loss. Although many policies now provide for subrogation, and thus determine the right of the insurer in this respect, the equitable right of subrogation is the legal effect of payment, and inures to the insurer without any formal assignment or any express stipulation to that effect in the policy. It has accordingly been said that the insurer's right of subrogation does not depend on any agreement, but arises out of the relation of the parties. It follows that an insurance company need not prove the existence of a subrogation agreement in an action brought by the insurer and the insured against a defendant wrongdoer for damages suffered by the insurer and insured, and recovery may be had despite the lack of such proof, since the wrongdoer is not prejudiced thereby."

Therefore the trial court correctly ruled that the plaintiff was properly subrogated to the rights of the owner, Christine Polewski, and her mother, the insured.

As their second assignment of error, the appellants allege that the court erred in finding the parents of the minor defendant liable for damages where there was no showing that the minor defendant willfully damaged the automobile. We agree.

The only basis for joining the parents in this lawsuit is R.C. 3109.09, which provides 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 custody and control of a minor under the age of eighteen years, who willfully damages property belonging to the owner. A finding of willful destruction of property is not dependent upon a prior finding of delinquency of such minor."

We note that the words "willfully damages property" are controlling in this case. It is clear that Donald Brooks, a minor, and the other minors willfully took the car without permission. There is no transcript of the proceedings in the trial court below, and the amended findings of fact and conclusions of law of the trial court contain no finding that The damage to the automobile was willful.

A decision in this case turns on statutory construction and interpretation. The ruling law is stated in 50 Ohio Jurisprudence 2d 273, Statutes, Section 287, as follows:

"A statute which operates to create a liability must be strictly construed in favor of the one sought to be subjected to its terms * * *."

The rule is applicable in this case because the liability sought to be imposed herein is created by the statute. There is no liability under the common law.

The common law in Ohio, as in most jurisdictions, provides that there is no liability imposed upon a parent for the negligent or intentional torts of minor children. Elms v. Flick (1919), 100 Ohio St. 186, 126 N.E. 66; 41 Ohio Jurisprudence 2d 372, Parent and Child, Section 54. R.C. 3109.09 is a statutory exception to this rule. It provides that parents may be liable for the torts of their minor children, but that liability is limited to acts of " willful damage to property." Thus, for R.C. 3109.09, to apply, there must be a finding that (1) A minor (2) has committed a willful act of damage (3) to property.

In this case, the allegation by the plaintiff is that the property (the Polewski vehicle), was willfully Taken. There is no finding, however, nor any reasonable grounds to believe from the record before this court, no transcript being available, that the accident resulting in damages to the vehicle, which followed the taking, was willful. From the record, the "damage to property" in this case was the result of negligence or accident but not willfulness.

The plaintiff, in response to interrogatories propounded by the defendant, Brooks, acknowledged that willful damage to the vehicle was not the basis for their claim.

The record shows the following:

"Q. 19: Do you claim that defendant Brooks intentionally drove the car into an obstruction and wrecked it? If so, on what facts do you base that contention?

"A. No."

"Q. 20. Do you claim that the other defendants also intentionally drove the car into an obstruction and wrecked it?

"A. No."

Since R.C. 3109.09 is a statutory exception and is in derogation of common law, Ohio rules of statutory construction provide that the provision is to be strictly construed. (50 Ohio Jurisprudence 2d 269, Statute, Section 284). This means that it is to be confined in operation to cases which fall fairly within the letter of the statute, recognizing nothing that is not expressed. An application of R.C. 3109.09 to this case would be an unwarranted extension of the statute to a case of negligence or accidental damage to property, a result clearly not within the letter or spirit of the...