Opinion
No. 31788
Decided December 28, 1949.
Negligence — Owner not liable for acts of employee operating automobile — Unless engaged in employer's business and acting within scope of employment — Driving to left of highway center at intersection, while passing another automobile — Section 6307-30 (a) 3, General Code — Prima facie negligence and directed verdict reversible error, when.
1. The owner of an automobile is not liable for damages for injuries to a third person caused by the negligence of an employee in the operation of the automobile unless it is proven that the employee, at the time, was engaged upon his employer's business and acting within the scope of his employment, there being no charge of wrongful entrustment. ( White Oak Coal Co. v. Rivoux, Admx., 88 Ohio St. 18, and Halkias v. Wilkoff, 141 Ohio St. 139, approved and followed.)
2. Where the plaintiff's evidence discloses that a defendant, in passing another car, drove his automobile to the left of the center of the highway while approaching an intersection, in violation of the provision of Section 6307-30 (a) 3, General Code, that "no vehicle * * * shall, in overtaking and passing traffic, or at any other time, be driven to the left of the center or center line of the roadway * * * when approaching within one hundred feet of or traversing any intersection * * *, unless compliance with this section is impossible because of insufficient roadway space," and that a collision resulted therefrom, in which the plaintiff suffered personal injuries, a prima facie case of negligence of the defendant is made, and the action of the trial court in directing a verdict in favor of the defendant constitutes reversible error.
APPEAL from the Court of Appeals for Butler county.
This is an action which originated in the Court of Common Pleas of Butler County. The plaintiff, Cassie Jackson, appellant here, claimed damages for personal injuries which she alleged she sustained in a collision of the automobile of defendant Charles Vinson, in which she was a paying passenger, with a motor truck owned by the defendants Henry Frederick and Elmer Hager, partners doing business as Frederick Hager Coal Company. The parties will hereinafter be referred to as plaintiff and defendants.
The averments of the petition are in substance as follows:
The plaintiff at the time of the collision was riding in an automobile owned by defendant Vinson under an agreement to pay him 75 cents for each round trip between her home in Middletown and her place of employment in Dayton. While enroute to Dayton and traveling east on Germantown street in Dayton and when just west of its intersection with Clifton street, the motor truck of defendants Frederick and Hager, being driven by their agent on the right side of Germantown street, passed into the intersection of the streets named and while in the intersection suddenly and without any notice or warning turned to the left. At the same time the driver of the automobile of the defendant Vinson, in which the plaintiff was riding and which was traveling at or about the rate of 35 miles per hour, was attempting to pass the motor truck. The motor truck sideswiped the automobile causing it to strike a pole resulting in injuries to the plaintiff.
Plaintiff charges that the defendant Vinson was negligent and careless in that the driver of his automobile in overtaking the motor truck drove to the left of the center line of the street, when approaching within 100 feet of the street intersection and traversing the intersection, "when there was plenty of room upon said roadway to pass to the right of said intersection and also when said highway upon which said defendants were traveling was not a one-way roadway and it was not upon a roadway where traffic is lawfully directed to be driven to the left side." Plaintiff charges also that Vinson's agent, who was then operating Vinson's automobile, was driving at an excessive speed and negligently drove diagonally across the street intersection and against the motor truck.
The claimed negligence of defendants Frederick and Hager is that their agent drove their motor truck into the intersection and attempted to make a left turn without notice or warning and without ascertaining that the movement could be made with safety. Issue was made by a separate answer of each defendant, which was in effect a general denial.
Upon the trial of the case the court upon motion directed a verdict for each of the defendants and entered judgment accordingly.
Upon appeal, the Court of Appeals affirmed the judgment.
The case is before this court following the allowance of a motion to certify the record.
Mr. Clinton D. Boyd, for appellant.
Mr. Harry S. Wonnell and Mr. Andrew W. Cherney, for appellees Frederick and Hager.
Mr. B.D. Worcester, for appellee Charles Vinson.
The issue of liability of the defendants arises from separate charges of negligence which were so considered and determined by the Court of Common Pleas and the Court of Appeals.
The Court of Common Pleas directed a verdict in favor of the defendants Frederick and Hager on the ground that the plaintiff failed to prove that at the time of the collision their motor truck was being driven by an employee then engaged in their business; and that the mere possession of defendant's motor truck by one who, prior to and after the accident, had been an employee, is insufficient to render the employer liable for the negligence of the driver of the motor truck.
The Court of Appeals, although concluding that the record disclosed evidence that the operator of the motor truck was negligent and that his negligence was a direct cause of the collision, agreed with the Court of Common Pleas in the view that there was an absence of evidence that the driver of the motor truck "had been employed to operate this truck or that he had ever done so on defendant's business."
Both courts, therefore, found the evidence insufficient to establish the agency of the driver of the motor truck. Such determination is in accord with the well established rule in this state that "the owner of an automobile is not liable in an action for damages for injuries to or death of a third person caused by the negligence of an employee in the operation of the automobile, unless it is proven that the employee, at the time, was engaged upon his employer's business acting within the scope of his employment." It is to be noted that in the instant case there is no claim of wrongful entrustment. White Oak Coal Co. v. Rivoux, Admx., 88 Ohio St. 18, 102 N.E. 302, 46 L.R.A. (N.S.), 1091, Ann. Cas. 1914C, 1082; Elms v. Flick, 100 Ohio St. 186, 126 N.E. 66; Sobolovitz v. Lubric Oil Co., 107 Ohio St. 204, 140 N.E. 634; and Halkais v. Wilkoff Co., 141 Ohio St. 139, 47 N.E.2d 199.
The reason assigned by the trial court for directing a verdict in favor of the defendant Vinson was that the evidence showed that Wilson, the driver of Vinson's automobile, was permitted to drive it wherever she pleased and that there was no evidence to show any control of the automobile by Vinson or that Wilson was acting as his agent in conveying passengers. The Court of Appeals did not pass upon the question of agency of Wilson, but based its affirmance of the judgment in favor of Vinson upon the want of "substantial evidence of negligence on the part of the operator of the Vinson automobile directly causing or contributing to cause the collision."
The petition alleges facts which, if true, constituted a violation of Section 6307-30 (a) 3, General Code. It reads as follows:
"No vehicle or trackless trolley shall, in overtaking and passing traffic, or at any other time, be driven to the left of the center or center line of the roadway under the following conditions:
"3. When approaching within one hundred feet of or traversing any intersection or railroad grade crossing, unless compliance with this section is impossible because of insufficient roadway space."
There is substantial evidence in the record showing that at the time of the collision the driver of the Vinson automobile was operating it parallel to the line of travel of the motor truck and that the collision occurred by reason of the attempt of the driver of the automobile to pass the motor truck at the left of the center line of the street upon which both were traveling and when both were either in or very near the street intersection. Proof is provided by the testimony of the driver of another automobile and by the evidence of the location of the damaged automobile following the collision that there was a violation of the provisions of Section 6307-30, General Code.
The record discloses that each of the passengers being transported in the Vinson automobile to and from his place of employment regularly paid for his transportation, except Wilson who did not pay for transportation because of the fact that she did the driving, and that the money paid as passenger fare was paid to Vinson.
The evidence shown by the record clearly makes a prima facie case of agency of Wilson.
For the reasons stated the judgment of the Court of Appeals as to the defendants Frederick and Hager is affirmed, and the judgment as to the defendant Vinson is reversed.
Judgment affirmed in part and reversed in part.
WEYGANDT, C.J., HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.