
    Marmorstein, Recr., v. Schuck.
    (Decided February 6, 1928.)
    
      Messrs. Dustin, McKeehan, Merrick, Arter & Stewart, for plaintiff in error.
    
      Messrs. Payer, Minshall, Karch & Kerr, for defendant in error.
   Vickery, J.

This cause comes into this court on a petition in error to the common pleas court of Cuyahoga county.

In the court below Harold Schuck brought a suit against the defendant Marmorstein, receiver of the Walther Apartments, to recover for medical services that he had been compelled to pay for surgical operations upon and the care of Beverly Jane Schuck, his infant daughter, who was injured in an elevator installed in the Walther Apartments, of which Marmorstein was the receiver.

Beverly Jane in another action, through her father as next friend, brought a suit to recover damages and recovered damages in the sum of $12,500, which this court sustained. Ante, 145, 163 N. E., 218. She not being entitled to recover for medical services, because the father was legally responsible for them, the father, Harold Schuck, brought this suit and recovered a judgment for $689.85. It is to reverse that judgment that error is prosecuted here.

There are two errors alleged why this cause should be reversed. First, plaintiff in error bases his claim upon the statement of Schuck in the record that he had put this little girl in the charge and control of his wife, in whose custody she was when this injury took place, and relies upon the decision in the case of Beliefontaine Railway Co. v. Snyder, 24 Ohio St., 670, where the record shows that a father placed a minor child in the custody and control of an older sister, and that the child was injured in crossing the tracks through the negligence of the older sister, and it is argued from above case that the mother was the agent of the father, and the doctrine of respondeat superior applied in the instant case, basing it upon the authority of the Snyder case.

Whether the mother is the agent for the father in the care and custody of the minor children one may well doubt, and the writer of this opinion doubts it very gravely, but it will not be necessary to decide the present case upon that question. It will be noted, from the Snyder case, supra, that two allegations were necessary: that the child that was injured was in the custody of the agent of the father, and that such agent was guilty of negligence. Now, let us assume, for the sake of argument, that the custody of Beverly Jane Schuck was in the mother, as the agent of the father. Then in order to come within the rule laid down in the Snyder case, supra, it was necessary for the mother to be guilty of contributory negligence in order to bar the father, the. principal, from recovering.

We have gone over this record and the record in the Beverly Jane ease, and can see no negligence upon the part of the mother. The mother went into the elevator, and the little child retired to the rear of the elevator where the door was constructed in a way that permitted her foot to get through the opening between the cab floor and the shaft, and the injury resulted therefrom. The mother was operating the automatic elevator, and she had to pay attention to her task, and there is nothing in the record to show that she was negligent in any way.

It surely cannot be said that Mrs. Schuck had to keep hold of the child in the elevator, which, if it had been safely constructed, could not have injured anybody.' If the child had been injured at the front door (treating the door in which Mrs. Schuck and the child entered as the front door), there might have been something in the contention; but as already pointed out in the opinion of Marmorstein, Recr., v. Schuck, ante, 145, 163 N. E., 218, the construction of‘this elevator with a door both in front and in the rear, was negligent construction under the circumstances, and as the child had to get back from the front door she went back towards the back door, and, the mother’s attention being directed to the manipulation of the elevator from the front, we cannot see how the mother was guilty of any negligence. The elevator being faultily constructed, as we have held in the Beverly Jane case, supra, and the injury resulting through the negligence of the owners of the apartment house, and the father being legally obliged to pay for medical services and attention to his little girl, there being nothing in the record to show that they were unreasonable, or were not properly chargeable to the father, we do not see any reason why the father should not recover.

There being no error in the judgment of the court, it will therefore be affirmed.

Judgment affirmed.

Sullivan, P. J., and Levine, J., concur.  