
    Fulk, Appellee, v. Lorenzoni, Appellant.
    (Decided April 14, 1938.)
    
      Messrs. Bowers, Stafford & Bowers, for appellee.
    
      Mr. B. B. Bridge and Mr. J. S. Rare, for appellant.
   Lemert, J.

This is an appeal on questions of law. Appellant was defendant and appellee was plaintiff below. For convenience they will be referred to as they stood in the trial court.

Plaintiff’s action was one in which he sought to recover from defendant damages for personal injuries alleged to have been sustained by plaintiff and for injury to his automobile. At the time of the collision, plaintiff was riding in the automobile which was being driven by his wife. The evidence in the record shows that plaintiff could not operate an automobile and that when he wanted to ride in it, it was necessary for someone else to drive it for him and the driving was usually done by his wife. On the evening of the accident plaintiff, his wife, one or more of their children, and a friend’s' child, had been to a show. They were on their way home and went out of their way slightly in order to return the friend’s child to her home.

The issues were made up in the court below by plaintiff’s petition, the answer and cross-petition of defendant, and plaintiff’s reply. In the cross-petition, defendant sought damages from plaintiff on account of the alleged negligence of his wife in the operation of the car. There was a specific allegation that the wife was acting as plaintiff’s agent at the time.

At the close of all the evidence plaintiff moved for a dismissal of defendant’s cross-petition on two grounds: 1. That no negligence was shown on the part of the wife. 2. There was no agency shown between the husband and wife. The court sustained plaintiff’s motion on the authority of the case of Hiller v. Shaw, decided by this Court of Appeals and reported in 45 Ohio App., 303, 187 N. E., 130. Thereafter the cause was submitted to the jury on the issues between the plaintiff and defendant, as made up by plaintiff’s petition, defendant’s answer thereto and plaintiff’s reply. On these is'sues the jury disagreed and was discharged. Defendant claims that the court erred in sustaining plaintiff’s motion to dismiss defendant’s cross-petition.

Examination of the record discloses that upon the 25th of July, 1936, plaintiff, John Fulk, was a passenger in an automobile owned by him and being driven by his wife northward on Wooster avenue in the city of Dover, Ohio, and that a collision occurred between that automobile and the car belonging to defendant, Louis Lorenzoni. The defendant filed an answer and cross-petition alleging negligence on the part of John Fulk, the owner of the car, which cross-petition was amended at the time of trial in such a manner as to allege the existence of agency between John Fulk and his wife, the driver of the car. The only evidence in the record offered upon the question of agency at the time of trial was' the testimony of John Fulk and his wife, from which the following facts developed:

1. John Fulk was the owner of the ear in which he was riding.

2. John Fulk had never driven the automobile and the same, since its purchase, had been driven and used exclusively by Ms wife.

3. Upon the Mght in question, Mrs. Fulk, without consulting her husband, John Fulk, the appellee, determined to take a daughter and another cMld to the picture show in Dover, and immediately before starting for the picture show she requested her husband to accompany her. After the picture show was concluded Mrs. Fulk, driving the car, proceeded northward on Wooster avenue to the point of collision.

4. At no time previous to the collision, or at the time of the collision, did John Fulk attempt to or exercise any direction over the operation of the automobile.

5. The evidence shows conclusively that iMs car, upon the evening in question, would have been driven in the same course and, perhaps, in the same manner had John Fulk remained at his home and had not accompanied Ms wife.

The record further discloses, by Mrs. Fulk’s testimony, that the automobile belonged to her and was purchased for her by her husband, although he retained title in Ms name.

The question of imputed negligence arises. We find that that doctrine in Ohio has been well settled by the case of Bloom v. Leech, Admr., 120 Ohio St., 239, 166 N. E., 137. It is also the recognized law of Ohio that the family relation doctrine is not recogmzed in Ohio. The only liability for which a relative and owner of an automobile is responsible is that existing from the doctrine of agency. Elliott v. Harding, 107 Ohio St., 501, 140 N. E., 338, 36 A. L. R., 1128; Hiller v. Shaw, supra.

At the conclusion of all the evidence in the case, the question presented to the court was: Is there sufficient proof or evidence upon the question of agency to allow the cross-petition to be presented to the jury!

As above quoted, the only circumstances that might be construed as evidence of agency are:

1. The ownership of the car by John Fulk.

2. His presence in the car.

Whatever weight such circumstances, standing alone, might have been entitled to was entirely destroyed by the substantive testimony of John Fulk and his wife.

The evidence clearly shows that the husband never drove the automobile in question, that at the time of the collision the wife was driving, and that she was driving it along the route which she herself selected. There is no evidence that John Fulk, the plaintiff, attempted to direct her in any way in reference to how she should drive the car.

It follows that we find no error in this record. The judgment of the Court of Common Pleas is hereby affirmed.

Judgment affirmed.

Montgomery, P. J., and Sheriok, J., concur.  