
    Bretzfelder v. Demaree.
    
      Negligence — Liability of husband for acts of wife — Common-law rule abrogated — Section 8002, General Code — Proof prerequisite to recovery — ■Master and servant, or principal and agent — Wife operating husband’s automobile — Returning with son from church.
    
    1. Section 8002, General Code, abrogates the common-law rule, which held the husband liable for negligent acts of his wife.
    2. In an action against the husband for his wife’s negligence, the marital relationship, of itself, is not a sufficient ground for recovery against him. It must be proven that the negligent acts of the wife were committed in the furtherance of her husband’s business or in the execution of his orders. A relation of principal and agent or of master and servant between them must be shown as a basis for recovery against him.
    3. When, by permission of her husband, the wife is allowed to use the latter’s automobile for her own purposes, proof that the car was his, that she was his wife, and that she took her child with her to religious services, does not, ipsoi facto, make the husband liable as her principal.
    (No. 16543
    —Decided March 8, 1921.)
    Certified by the Court of Appeals of Montgomery county.
    
    This case was lodged in this court by reason of a certificate-of conflict entered by the court of appeals of Montgomery county finding its judgment in the present cause in conflict with the decision and judgment pronounced upon the same question by the court of appeals of Cuyahoga county in another cause.
    
      The action was one for personal injury brought in the trial court by the defendant in error against Bretzfelder, the plaintiff in error, by reason of the negligence of the latter’s wife in driving his automobile. The second amended petition alleged that the defendant’s wife, while acting as his agent, servant and chauffeur, and while acting as such and in the service of the said defendant, drove the automobile in a negligent and reckless manner; that the act of the wife was done “in the performance of duties towards the family of defendant which defendant had authorized her to perform, to-wit, conveying defendant’s minor son, about three and one-half yéars of age, from religious services at church to their home.”
    The pleadings made up issues of negligence and contributory negligence and the cause was submitted to the jury, which rendered a verdict in favor of the plaintiff. The court of appeals affirmed the judgment of the trial court, whereupon, because of conflict, the case was certified to this court.
    The only question presented by this record is whether the proof offered by the plaintiff established the relation of agency between the husband and wife upon the occasion in controversy. At the close of the plaintiff’s testimony defendant’s counsel moved for a directed verdict, basing his motion upon the failure of the evidence to establish the relation of principal and agent or master and servant between himself and his wife. This motion was overruled.
    
      The evidence disclosed that the family of Bretzfelder consisted of himself, his wife and a child three and a half years of age; that when the accident happened Bretzfelder was absent from his home in the city of Dayton, where the accident occurred; and that his wife, with a lady friend, who was not a guest of the family, together with the child, were returning home from a Catholic church when the accident occurred. On the trial the following stipulation was agreed to by counsel for the parties: “That the automobile being driven by Mrs. Bretzfelder at the time of the happening of the accident was owned by the defendant, Samuel Bretzfelder, used generally for the family purpose, and that at the time of the happening of the accident Mrs. Bretzfelder was driving the same with permission of the defendant to use the same for the purpose for which it was being used at the time of the happening of the accident.”
    Supplementing the stipulation the husband was called to the witness stand and testified that he bought the automobile for family use and that his wife made use of the car whenever she wanted; that the child had the privilege of going anywhere the mother went; and that the husband was a member of the Jewish religious faith and his wife was a Catholic. Upon this feature of the case the husband testified as follows:
    
      “Q. When you married was there any arrangement made about the religious training of the child or children? A. None whatever, and it is a matter between her and myself.
    
      
      “Q. There was no agreement between you? A. None whatever.
    
      “Q. Then is it with or without your consent that the child is given a religious training? A. Well, we have not discussed that because the child isn’t old enough to realize what that means; whenever the child gets to that stage we will discuss that.
    “Q. At the present time, or I mean, during this time that this accident occurred, when your wife was taking the child to church, it was with your knowledge, wasn’t it? A. I can’t say that it was, no; as I said before, she takes the child wherever she goes; I don’t question her.
    
      “Q. I don’t mean on this particular occasion, but you knew she went to church, didn’t you? A. I know she goes to church whenever she pleases, yes.
    “Q. And you knew the child was going with her constantly, didn’t you? A. Well, no; she doesn’t take the child with her every time she goes to church.
    “Q. I mean at that time, in April of 1917? A. What do you mean?
    
      “Q. Wasn’t it her habit of taking the child with her on those occasions when she went to church ? A. When she took the car out she would take the child; when I met her I didn’t ask her whether she went to church or whether she took the child to church.
    
      “Q. But she had your authorization to do so if she saw fit; you left the religious training of the child to her, did you not? A. I didn’t say that; I said when the child got old enough we would discuss that between ourselves.”
    Having previously overruled the motion for a directed verdict, the court in its general charge instructed the jury as follows:
    “In this case the plaintiff claims that the wife, Mrs. Bretzfelder, was the agent or servant or employe of the husband. The husband is not liable for the wife’s alleged negligence merely because of such relationship. His liability, if any, must rest upon the relationship of principal and agent or that of master and servant. Defendant’s mere ownership of the automobile is not enough to create a liability for his wife’s negligence, if she was negligent. To have that result, the act complained of must have been done within the scope of the wife’s employment and in conducting what is called the husband’s business or affairs; although the authority to so represent the husband need not be expressed in words, but may be implied from the precedent course of conduct.”
    
      Mr. H. Frank Van Lili, for plaintiff in error.
    
      Mr. Joseph W. Sharts, for defendant in error. .
    
      
       Certified as being in conflict with Powell v. Newman, 14 Ohio App.,-.
    
   Jones, J.

The sole question in this case is whether the testimony, on behalf of plaintiff below, giving it the most favorable phase, was sufficient to establish liability upon the part of the husband for the tortious act of his wife upon this occasion. The trial court recognized that the relation of principal and agent or master and servant must have existed between the husband and wife before the former could be charged with the latter’s negligence, and that the defendant’s mere ownership was not sufficient to create liability for his wife’s negligence.

As an abstract proposition of law the charge was not erroneous. Did the testimony, however, establish any agency relation between them, or tend to show that the act of the wife in taking the husband’s automobile upon this occasion was performed either in the scope of the wife’s employment or in conducting what is called the husband’s business or affairs, as charged by the court? At common law, unquestionably, the husband was liable for acts of this character committed by his wife. This principle was then established because of the servitude of marriage, whereby the husband not only possessed control over her person and acts, but, upon coverture, became entitled to her goods and chattels, and had the absolute right to reduce her choses in action to possession during her life. The wife’s existence was merged in that of her husband, and in actions against herself her husband was required to be joined. However, in the development of our statute law, this principle of liability upon the part of the husband was abrogated by the adoption in various states of certain statutes granting the wife the freedom of contract, the right to acquire and dispose of real and personal property, and providing that neither husband nor wife should be liable for the tortious acts of the other because of the marital relationship. In our own state the statute provides: “Neither husband nor wife, as such, is answerable for the acts of the other.” Section 8002, General Code.

In Elms v. Flick, 100 Ohio St., 186, there was an attempt to fasten liability upon the father, who owned the automobile, because of its negligent operation by an adult son. It was there held that the fact of relationship did not give rise to liability upon the part of the father, but that the basis of liability in such action rested upon the principle of respondeat superior.

So it may be stated in this case that the court properly charged that the fact of marital relationship could not be availed of to entail liability upon the husband for the negligent acts of the wife. The'case Of White Oak Coal Co. v. Rivoux, Admx., 88 Ohio St., 18, announces the well-known legal principle that an owner of an automobile is not liable for the negligence of his employe unless it is proven that the latter was, at the time, engaged upon his employer’s business, and that the fact that the automobile is owned by the employer and was negligently operated by his employe does not make a prima facie case against the owner.

Under the foregoing principles of agency, established in this state, can it be said that the plaintiff has proven every fact vital to her recovery? The court of appeals in reviewing the case conceded that the case was not free from doubt. It is indisputable that the plaintiff in order to recover must prove that there existed between the husband and wife the relation of principal and agent or- master and servant, and that at the time of the negligent operation of the car the wife was engaged in the iurtherance of the husband’s business or in the execution of the husband’s orders. Was there any proof tending to show that the wife was engaged in either? It is true that the husband furnished the car for the use of the family and permitted his wife to use it for her own pleasure and recreation whenever she saw fit; sfie also had the privilege of taking the three-year-old child with her whenever she so desired; but in taking the car upon the occasion in question, and while her husband was absent from the city, there is not the slightest tendency to show that the automobile was used either in her husband’s business or in the execution of his orders. She was acting upon her own initiative and not upon his. There can be no possible liability attaching to the husband unless it be assumed that such liability arose because of the fact that she was taking this small child with her for religious training. Even if this be so, this privilege was also exercised upon her own motion and not upon his. There was no legal obligation upon the part of the husband to send the child to the Catholic or any other church. There was a moral obligation upon his part to do so when the child arrived at an age of understanding, but that obligation likewise existed upon the part of the mother; and if in the exercise of her moral obligation she took the child to church she was simply carrying out her own religious duty and was in no sense acting either in the execution of her husband’s orders or in the furtherance of his business.

A wife, like another, may sustain the relation of agent to her husband. This relationship may be shown by express creation or implied from proof of conduct and circumstances reasonably creating the agency. But when, by permission of her husband, the wife is allowed to use his automobile for her own purposes, proof that the car was his, that she was his wife, and that she took her child with her to religious services, • does not, ipso facto, make the husband liable as her principal.

In any aspect of the case we are unable to see how the evidence of the plaintiff tended to create the relation of principal and agent between husband and wife. The trial court should have sustained the motion of defendant at the close of plaintiff’s evidence.

The judgments of the lower courts are reversed, and, proceeding to render the judgment the trial court should have rendered, judgment is hereby rendered in favor of the plaintiff in error.

Judgments reversed, and judgment for plaintiff in error.

Marshall, C. J., Johnson, Hough, Robinson and Matthias, JJ., concur.  