Wery v. Seff
| Decision Date | 21 February 1940 |
| Docket Number | 27713. |
| Citation | 25 N.E.2d 692,136 Ohio St. 307 |
| Parties | WERY v. SEFF et al. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. The action of a trial court in sustaining a demurrer to a petition on the ground of misjoinder the dismissing the petition, in an action against two persons as joint tort-feasors, is a final order affecting substantial rights from which an appeal may be taken.
2. The violation of an ordinance making it unlawful for the owner of a motor vehicle to permit a person under the age of sixteen years to operate such vehicle upon any thoroughfare of the municipality constitutes negligence as a matter of law.
3. A parent violating such ordinance by placing his automobile in sole charge of his child, becomes answerable in damages on the basis of his culpability in affording the child the opportunity of inflicting harm, where injury to a third person on a street of the municipality follows as a direct result of the careless operation thereof.
4. In the event of injury to a third person under such circumstances, liability of the parent and child is not only primary but joint and several, and both may be joined as parties defendant in an action for damages on account of the injury.
5. When two or more persons, under circumstances creating primary accountability, directly produce a single indivisible injury by their concurrent negligence, they are jointly and severally liable, even though there is no common duty, common design or concerted action.
Certified by Court of Appeals, Summit county.
Charles A. Wery, as plaintiff, filed his petition in the Court of Common Pleas of Summit county against Harry H. Seff and Robert E. Seff, a minor, designated as father and son, to recover damages for the loss of the services and consortium of his wife and for midical care and hospital expenses for which he was obligated by reason of physical injuries she was alleged to have sustained on October 19, 1938, through the combined negligence of the defendants.
Such injuries were alleged to have occurred at a street intersection in the city of Akron when plaintiff's wife, a pedestrian, crossing one of the streets, was run into by Robert Seff, aged fifteen, while in the process of negotiating a left-hand turn in an automobile owned but not then occupied by his father.
The negligence charged against the elder Seff was that he allowed his minor son to operate the automobile contrary to the provisions of Section 570-3 of the Ordinances of the city of Akron, making it unlawful and a penal offense for the owner of any motor vehicle to permit a person under the age of sixteen years to drive such vehicle upon any thoroughfare of the city, and in failing and neglecting to have some mature person of good judgment ride in the automobile with the boy.
The negligence charged against the younger Seff was that he violated Section 568-1 of the Ordinances of the city of Akron, the manner of making the left-hand turn when Mrs. Wery had the right of way because of the color of the traffic light; that he failed to keep a lookout and to control the speed and direction of the automobile so as to avoid the collision; that he failed to give any warning of his intention to make the turn; and that he drove the automobile in a way to endanger the life and limb of Mrs. Wery.
Such negligence on the part of the two Seffs was stated to have been the proximate cause of the injuries, and the city ordinances relied upon were set out fully in the petition.
Each of the defendants interposed a demurrer to the petition on the grounds of misjoinder of parties defendant and of causes of action, which demurrers were sustained by the trial court and the petition dismissed.
An appeal was perfected to the Court of Appeals, where the right of appeal was upheld over motion to dismiss, and the judgment reversed, with a remand of the cause to the Court of Common Pleas for further proceedings.
The judges of the Court of Appeals, finding the judgment rendered in conflict with the judgment pronounced by the Court of Appeals of Lawrence county in the case of Harmon v. Justice, certified the record to this court for review and final determination.
Waters, Andress, Wise, Roetzel & Maxon, of Akron, for appellants.
Rockwell, Grant, Doolittle, Thomas & Buckingham, of Akron, for appellee.
The initial complaint of the defendants, appellants herein, is that the Court of Appeals committed prejudicial error in overruling their motion to dismiss the appeal. When the trial court sustained the demurrers to the petition, thus depriving plaintiff of the advantages of pursuing the alleged tort-feasors jointly, and then dismissed the petition, a final order affecting substantial rights resulted, and was reviewable within the principles announced by this court in Grimm v. Modest, 135 Ohio St. 275, 20 N.E.2d 527.
Next, it is contended that the Court of Appeals erred in holding the two defendants properly joinable in the same action.
There can be no doubt that the petition contains sufficient allegations to state a cause of action against Harry H. Seff. It is firmly established in this state that the violation of a statute or ordinance passed in the interests of public safety and prescribing a rule of conduct constitutes negligence as a matter of law. Section 570-3 of the Ordinances of the city of Akron comes within this classification. 29 Ohio Jurisprudence, 435, Section 42, and cases cited in the note.
Courts have held generally that it is negligence per se for the owner of a motor vehicle to entrust it to a minor under the age specified by statute or ordinance for the purposes of operation, on the theory that the prohibitory enactment itself amounts to a conclusive declaration that an individual younger than the age designated is incompetent to drive a motor vehicle. Millar v. Semler, 137 Or. 610, 2 P.2d 233, 3 P.2d 987; Wilcox v. Wunderlich, 73 Utah 1, 38, 272 P. 207, 221; Smith, Gdn., v. Nealey, 162 Wash. 160, 162, 298 P. 345, 346.
When a parent places an automobile in charge of his immature youngster, and injury follows as a direct result of the careless operation thereof, the parent becomes answerable in damages, not upon the basis of the family relationship or necessarily upon that of principal and agent, but by reason of his culpability in making it possible for the child to occasion harm. Natually, the deportment of the inexperienced child becomes a factor to the liability of the parent. Without it the wrongful entrustment could not be said to have proximately caused the injury. Elliott v. Harding, 107 Ohio St. 501, 140 N.E. 338, 36 A.L.R. 1128; 4 Ohio Jurisprudence, 728. Section 117; 46 Corpus Juris, 1332, Section 171; 4 Berry on Automobiles, 7th Ed., 710, Section 4.406; 2 Restatement of the Law of Torts, 835, Section 308.
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