
    Willey, Admr., v. Shinn.
    (Decided March 23, 1932.)
    
      Messrs. Graham & Graham, for plaintiff in error.
    
      Messrs. George & Leasure, for defendant in error.
   Lemert, J.

Plaintiff in error herein, Howard C. Willey, as administrator of the estate of Charles Wayne Willey, deceased, files his petition in error and says that at the September term, '1931, of the court of common pleas of Muskingum county, Ohio, in a civil action therein pending, wherein this plaintiff in error was plaintiff and the defendant in error was defendant, hy the consideration of the court of common pleas, after the plaintiff rested, the court directed the jury to return a verdict against the plaintiff and in favor of the defendant.

A transcript of the docket and journal entries and the original pleadings and papers, including the bill of exceptions, are filed herein, and the plaintiff in error has filed his petition in error, setting forth several grounds of error, yet the one relied upon principally is that the court below erred in sustaining the motion of the defendant, made immediately after plaintiff below had rested his case.

The record discloses that on September 29, 1930, Charles Wayne Willey, an infant of the age of about four years, was crossing the highway, when the defendant’s son was driving an automobile, owned by the defendant, and riding with the son at the time were the defendant’s wife and daughter; that said little child was struck and injured and died from the injuries later.

An examination of the testimony in the lower court reveals that the defendant’s son on the date herein-before mentioned came home from school about 3 o’clock p. m., the afternoon of the accident, and took the defendant’s wife and daughter to Zanesville; the wife being desirous of calling on a dentist. And an examination of the record discloses testimony in part as follows, as shown in the testimony of Charles Hutton, while the said Hutton was detailing a conversation that he had with the defendant, Shinn: “Was this your car or the boy’s car?” The defendant replied thereto: “It was my car. The boy was driving it. I sent the boy to town with my wife to the dentist.”

So that it is to be noted that the sole and only question before this court is tbe question of agency between the father and the son, who was driving the car, or, in other words, was there a scintilla of evidence that the son at the time of the accident was the agent of the defendant, the father?

In Ford, Admx., v. Papcke, 26 Ohio App., 225, 158 N. E., 558, it was held:

“1. Where decedent was injured by an automobile owned by the wife, a passenger therein, but being driven by her husband, whether the husband was the wife’s agent held for jury under scintilla evidence rule, so that directing verdict for defendant was error. # * #
“2. Since the Supreme Court of Ohio has established the validity of the scintilla rule in determining when direction of verdict is proper, the courts of inferior jurisdiction are bound by the fact that the doctrine is a settled one, and must follow the rule established by the Supreme Court.”

And, further, in that case the court held: “Under the scintilla rule of evidence, in determining when a verdict is properly directed, where the court has searched the record and is in doubt whether a scintilla of evidence exists such doubt must be resolved in favor of him who contends for the existence of such scintilla of evidence.”

In Pope, Admx., v. Mudge, 108 Ohio St., 192, 140 N. E., 501, the Supreme Court held:

“1. It is error for the court to direct a verdict against the plaintiff, where, by giving to !the evidence the most favorable interpretation toward him which any of the evidence will reasonably warrant, there is some evidence tending to support the allegations of the petition.
“2. If, in ruling upon a motion to direct a verdict, the court is required to detect the truth from conflicting evidence of the same or different witnesses, the motion should be overruled.”

The record in the instant case and the evidence before the jury in the court below clearly show that the defendant below stated: “It was my car. I sent the boy to town with my wife to the dentist. ’ ’ Taking further into consideration, as shown by the record, that this was a family car, operated by the boy when the father was not present, that it was used for the benefit of the family and purchased for said benefit, there was a scintilla of evidence raising a question of fact which was for the jury to determine, and the court below committed error and usurped the province of the jury in taking said case from the jury.

It therefore follows that the judgment of the court below will be and the same is hereby reversed, and said cause is remanded to the court of common pleas for further proceedings according to law.

Judgment reversed and cause remanded.

Sherick, P. J., and Montgomery, J., concur.  