Summary
In Wery, the parent of a 15-year-old boy was held to be negligent as a matter of law in permitting his immature youngster to operate a motor vehicle upon the highway in violation of an ordinance of the city of Akron, which is similar to R. C. 4507.33.
Summary of this case from Crabtree v. ShultzOpinion
No. 27713
Decided February 21, 1940.
Appeal — Final order — Sustaining demurrer for misjoinder and dismissing petition against joint tort-feasors — Negligence per se — Owner violating ordinance by entrusting motor vehicle to minor — Parent violating ordinance liable for injury to third person, when — Parent and child may be joined as defendants — Two or more persons jointly and severally liable, when.
1. The action of a trial court in sustaining a demurrer to a petition on the ground of misjoinder and 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 the Court of Appeals of 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 medical 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, in 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.
Messrs. Rockwell, Grant, Doolittle, Thomas Buckingham, for appellee.
Messrs. Waters, Andress, Wise, Roetzel Maxon, for appellants.
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 Ore., 610, 2 P.2d 233; Wilcox v. Wunderlich, 73 Utah 1, 38, 272 P. 207, 221; Smith, Gdn., v. Nealey, 162 Wn. 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. Naturally, 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 (7 Ed.), 710, Section 4.406; 2 Restatement of the Law of Torts, 835, Section 308.
Neither can there be any doubt that actionable negligence was charged against Robert E. Seff. That a minor, especially of the age of Robert, is civilly liable for torts of the kind described in the petition is too well established to require comment. 21 Ohio Jurisprudence, 902, Section 43; 14 Ruling Case Law, 259, Section 36; 31 Corpus Juris, 1090, Section 203.
It is plain, therefore, that either father or son could have been sued for the claimed wrong. Were they rightly joined in one action?
The rule recognized by the majority of courts is that when the negligence of two or more persons concur to produce a single indivisible injury, such persons are jointly and severally liable, and the existence of common duty, common design or concerted action is not essential. 1 Cooley on Torts (4 Ed.), 276 et seq., Section 86; 62 Corpus Juris, 1133, Section 45.
Within the above rule, the negligence of Harry H. Seff, as averred in the petition, consisted of permitting his fifteen-year-old boy to drive the automobile on the streets of the city of Akron in violation of the ordinance pleaded, thus providing the opportunity for the infliction of harm; the negligence of Robert E. Seff was the manner in which he drove the vehicle. Negligence on the part of both existed at the moment of impact and concurred in producing the mischief.
In Ohio, the test often applied to determine the propriety of joining two tort-feasors in one action for an injury due to their acts is whether there is primary and secondary liability to the injured person. Primary liability to the extent of full compensation rests on him who actually commits the wrong, while secondary liability to the same extent rests upon him who, solely by reason of his relationship to the wrongdoer, is likewise answerable. In such case, no joinder in a single action is allowed because there is no joint accountability.
A typical example is presented in the ordinary case of master and servant. When a servant in the course of his employment negligently causes injury to a third person, he is primarily responsible. The master is liable also, under the doctrine of respondeat superior, but secondarily so. There can be no joinder of the two in the same action. If the master is forced to pay the damages, he has a right of recovery over against his servant. A comprehensive discussion of this question will be found in Losito v. Kruse, Jr., ante, 183, 24 N.E.2d 705, and Herron v. City of Youngstown, ante, 190, 24 N.E.2d 708, where most of the pertinent decisions of this court are collected; and compare Stark County Agricultural Society v. Brenner, 122 Ohio St. 560, 172 N.E. 659, wherein the subject of primary and secondary liability is given some attention. Concerning this case it is submitted that the judgment of reversal was quite proper, but that the general proposition of law contained in the third paragraph of the syllabus, to the effect that tort-feasors may be joined only when they have acted in concert in the execution of a common purpose and when their negligence is of the same character, is too narrowly stated. "Joint Torts and Several Liability" (Prosser), 25 California Law Review, 413, 432; Boyd v. Watts, 27 Ohio St. 259, 269; Covington Transfer Co. v. Kelly, 36 Ohio St. 86, 90, 38 Am. Rep., 558.
In the present case no primary and secondary liability is involved. Under the averments of the petition, father and son are primarily liable, because the alleged injuries were attributable to their coexisting and combined negligence; the wrongful conduct of the one coupled with that of the other brought about the result complained of. Consequently, they are properly joinable in one action. 30 Ohio Jurisprudence, 769, Section 46.
Should the elder Seff pay the damages he could not recover over against his son. "There is no right of contribution between persons whose concurrent negligence has made them liable in damages." Royal Indemnity Co. v. Becker, 122 Ohio St. 582, 173 N.E. 194, 75 A. L. R., 1481. See, also, U.S. Casualty Co. v. Indemnity Insurance Co., 129 Ohio St. 391, 397, 195 N.E. 850, 853.
In actions to recover damages for personal injuries predicated on the negligent operation of an automobile wrongfully entrusted to an incompetent driver, the propriety of joining owner and driver as parties defendant seems to be accepted as a matter of course. Rush v. McDonnell, 214 Ala. 47, 106 So. 175; Greeley v. Cunningham, 116 Conn. 515, 165 A. 678; Taylor, Admr., v. Stewart, 172 N.C. 203, 90 S.E. 134; Hopkins, Gdn., v. Droppers, 184 Wis. 400, 198 N.W. 738, 36 A. L. R., 1156; Lufty v. Lockhart, 37 Ariz. 488, 295 P. 975.
No error being discoverable in the judgment of the Court of Appeals, such judgment is affirmed.
Judgment affirmed.
WEYGANDT, C.J., DAY, WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.