
    No. 849
    BRUNHOFF MFG. CO. v. SCHULTZ
    No. 19980.
    Supreme Court
    On motion to certify.
    Dock. July 15, 1926;
    4 Abs. 493.
    829. NEGLIGENCE — Where an action for damages on the ground of negligence is filed against a party driving an automobile and at the time of the filing of the action the plaintiff does not know that he is a servant, may said party subsequently file an action against the master ?
    Attorneys — Jones & Jones, for Company; A. Pfau for Schultz; all of Cincinnati.
   This action was brought originally in the Hamilton Common Pleas by Rosa Schultz against the Brunhoff Manufacturing Company for damages resulting from personal injuries sustained in an automobile accident.

It appears that on Tritsch was driving the automobile whose negligent operation is alleged to have caused the injury. Suit was filed in the Superior Court of Cincinnati against Tritsch before Schultz knew he was a servant of the plaintiff in error.

The Company answered that Schultz bad made an election to hold Tritsch and the reply filed thereto set up that no part of the judgment against Tritsch had been paid and at the time of the filing of suit in the Superior Court she was not aware that Tritsch was a servant.

The judgment of the Common Pleas in sustaining a demurrer to the reply was reversed by the Court of Appeals.

The Company in the Supreme Court contends: that Schultz made an election to hold Tritsch and is therefore barred from any remedy against the company.  