Opinion
No. 33622
Decided March 24, 1954.
Parent and child — Parent's personal-tort liability to unemancipated minor child — In business or vocational capacity — No more extensive because of such relationship.
Although a parent in his business or vocational capacity may not be immune from a personal-tort action by his unemancipated minor child, such parent is not subject to a more extensive liability in such an action merely because the action is brought against him by his own child instead of by the child of someone else.
APPEAL from the Court of Appeals for Huron county.
Plaintiff, an infant aged six and one-half years when injured, instituted this action by his mother and next friend against the defendants, his father and another individual who are alleged to have been a partnership "engaged in commercial automotive transportation." A previous decision in this cause is reported in 156 Ohio St. 566, 103 N.E.2d 743.
In his second amended petition, plaintiff alleges that defendants "maintained and operated a gasoline pump on the real property of plaintiff's mother * * * for the purpose of supplying * * * trucks with engine fuel"; that, while plaintiff and his companious were playing about the pump, one of them removed the gasoline hose from its bracket on the pump, drained the gasoline therefrom into a container, and, in so doing, spattered gasoline on plaintiff's clothing; that thereafter one of them struck a match in close proximity to plaintiff and the gasoline container; that a blaze ensued which ignited the gasoline soaked clothing of plaintiff and caused injuries to plaintiff; that defendants were negligent in certain respects in maintaining the pump; and that that negligence was the direct and proximate cause of plaintiff's injuries.
The cause was tried before a jury which rendered a verdict for the plaintiff for $6,500, upon which judgment was rendered. Defendant had made a motion for a directed verdict at the close of all the evidence.
On appeal to the Court of Appeals, that court reversed the judgment of the Common Pleas Court but refused to render final judgment for the defendants.
The cause is now before this court on an appeal by defendants from the judgment of the Court of Appeals, pursuant to allowance of a motion to certify the record.
Messrs. Miller Miller, for appellee.
Messrs. Boer, Mierke, Thomas, McClelland Handy, for appellants.
Plaintiff's case is based upon the contention that defendants were negligent either in leaving the gasoline pump unlocked or improperly locked or in failing to drain all the gasoline from its hose.
The undisputed evidence discloses that plaintiff's mother and father occupied the premises owned by his mother as the home of themselves and their children; that plaintiff's father made his living for the family from the partnership business of the defendants; that the gasoline tank with its pump was placed on the property by plaintiff's father several weeks before plaintiff was injured; that it was thereafter used there in the conduct of the partnership business at least with the acquiescence of plaintiff's mother; and that plaintiff was warned by both his father and mother to stay away from this tank and knew that he was not supposed to play around it.
Even without such a warning, if plaintiff had strayed from his home premises onto the premises of a neighbor where such a gasoline pump had been maintained, he could not have recovered from the neighbor for negligence, such as that claimed to have been involved in the instant case, in the maintenance of such a gasoline pump by the neighbor on his own premises. Soles, Admr., v. Ohio Edison Co., 144 Ohio St. 373, 59 N.E.2d 138; Pittsburgh, Ft. Wayne Chicago Ry. Co. v. Bingham, Admx., 29 Ohio St. 364, 23 Am. Rep., 751. In such a case, the infancy of a child is not a factor, under the decisions of this court, in conferring upon the child any greater rights than those of a trespasser. Railroad Co. v. Harvey, 77 Ohio St. 235, 83 N.E. 66, 122 Am. St. Rep., 503, 19 L.R.A. (N.S.), 1136; Hannan, Admr., v. Ehrlich, 102 Ohio St. 176, 131 N.E. 504; Sharp Realty Co. v. Forsha, Jr., a Minor, 122 Ohio St. 368, 171 N.E. 598. Although the law, as long established in this state by those decisions, may seem to be harsh, there has been no legislative change therein. Under the undisputed evidence in the instant case, plaintiff, in tampering with this gasoline tank and pump, would be in the same position as a trespasser. There can be no contention in the instant case, as in Mudrich, a Minor, v. Standard Oil Co., 153 Ohio St. 31, 90 N.E.2d 859, that anything which defendants did on the premises of plaintiff's mother, which they occupied with her acquiescence for the purpose of making a living for her family, was outside and beyond the scope of the business purpose for which defendants were using such premises.
If we assume, as plaintiff contends, that plaintiff was not a trespasser because the gasoline pump was located on his home premises, let us consider what rights another child would have had against defendants if such other child had been invited by plaintiff or plaintiff's parents to enjoy their hospitality. The duty of the occupier of the premises with respect to such a social guest are set forth in paragraph three of the syllabus in Scheibel v. Lipton, 156 Ohio St. 308, 102 N.E.2d 453. It is apparent that the occupiers of the premises would have fully discharged their duty to such a child guest by warning him as plaintiff's father and mother had warned the plaintiff. That defendants should be treated as occupiers of the premises on the facts of this case is apparent from paragraph two of the syllabus in Soles, Admr., v. Ohio Edison Co., supra.
We see no reason for recognizing plaintiff as having greater rights with respect to recovery from his father than he would have had if he had sought to recover from some other party who, under similar circumstances, did or failed to do just what his father is claimed to have done or failed to do. Certainly, a parent is not subject to a more extensive liability in a personal-tort action merely because the plaintiff is his unemancipated minor child instead of someone else's child. All the cases cited in the previous decision by this court in this cause, in which a child was suing his parent, involved instances where the child only sought to be placed in the same position with respect to liability of his parent as he would have been if he had been suing someone other than his parent.
In our opinion the motion for a directed verdict should have been granted. The judgment of reversal of the Court of Appeals is therefore modified and final judgment is rendered for defendants.
Judgment modified and final judgment for defendants.
WEYGANDT, C.J., MIDDLETON, HART, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.