
    Ford, Admx., v. Papcke.
    
      Negligence — Whether husband driving automobile agent of wife, question for jury — “Scintilla of evidence” defined— Inferior courts to follow scintilla rule established by Supreme Court — Doubt resolved in favor of one contending scintilla exists, when.
    
    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; “scintilla of evidence” meaning a mere trifle of evidence.
    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.
    3. 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.
    (Decided June 6, 1927.)
    Error: Court of Appeals for Cuyahoga county.
    
      Mr. Melville W. Vickery, for plaintiff in error.
    
      Messrs. Boyd, Ccmnon, Brooks $ Wick, for defendant in error.
   Sullivan, P. J.

This is a proceeding in error from the court of common pleas of Cuyahoga county, and the sole question is whether the court committed prejudicial error in sustaining a motion to direct a verdict for the defendant, Minnie Papeke, on the ground that there was not a scintilla of evidence tending to support the doctrine of respondeat superior. The action is one brought by Sylvester Ford, and revived after his death in the name of Bessie Ford, as administratrix, to recover damages for personal injuries growing out of an automobile collision occurring March 21, 1922, at a time when Sylvester Ford, decedent of plaintiff in error, was struck and injured by a car owned by Minnie Papeke, driven by her husband, while she herself, as well as their young child, was riding in the car.

Testimony was offered, and remained unchallenged in the record, that the automobile was owned by the wife, Minnie Papeke, that she was present in the car when the accident happened, and prior thereto; that her husband was driving; that they left her farm in Rootstown, Ohio, to come to Cleveland, and among the purposes of the trip was that the wife might come to her Euclid avenue residence; and that they might purchase a certain spraying machine to be used by the husband on the farm in Rootstown, owned by the wife, as well as upon other farms in the vicinity. There was also some evidence that when they started for the city, some eggs were in the car.

Thus the question to be determined is whether there is a scintilla of evidence in the record bearing upon the question whether the husband was acting as the agent or the servant of the wife, while driving the car, or, in other words, whether there is a scintilla of evidence to support the doctrine of respondeat superior. It is necessary for us to keep in mind the meaning of the word “scintilla,” as applied to evidence, because we are not examining the question whether there is a preponderance of evidence, a sufficiency of evidence, credible evidence, or even some evidence, because a scintilla of evidence is different in character and significance from any of these other conditions.

In Cunningham v. Union Pac. Ry. Co., 4 Utah, 206, 7 P., 793, a scintilla of evidence is defined as a spark.

In Webster, and other similar authorities, we find, among other definitions, that it means a trifle; and in some authorities it is held to mean a mere trifle.

In Offutt v. World’s Columbian Exposition, 175 Ill., 472, 51 N. E., 651, we find the following definition of that term:

“A mere scintilla of evidence, if it means anything, means the least particle of evidence, evidence which, without further evidence, is a mere trifle.’■’

In Webster’s New International Dictionary, we find scintilla defined as follows:

“A spark; glimmer; gleam; now rare except fig., in a negative construction of something regarded as affording light, or information; as, there is not a scintilla of evidence.”

These observations and quotations are made for the purpose of showing the character of the examination which it is necessary to make of the record in order to determine whether there is therein a scintilla of evidence bearing upon the issue raised. The judicial task demands a searching and a minute examination of the record, in order to determine whether there is a spark, a mere trifle, or glimmer of evidence bearing upon the question of agency or master and servant. This is the nature of our task.

A reviewing court in Ohio is compelled to make this microscopic journey through the record in order to determine the existence or nonexistence of what may be called a mere trifle of evidence bearing upon the point at issue in the record. Whether or not we find it depends upon the keenness of our judicial eyesight as well as upon our sagacity in being able to apprehend it when once discovered, but it is our duty to so search because the Supreme Court of Ohio has established the validity of the scintilla rule, and courts of inferior jurisdiction, regardless of their own opinion with respect to it, are bound by the fact that the doctrine is settled in this state. We are bound to follow the rule of the Supreme Court in the manner and method of determining from the record under review whether there is a scintilla of evidence that would entitle the pleader to a recovery.

In Pope, Adm’x., v. Mudge, 108 Ohio St., 192, 140 N. E., 501, the court held:

“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.”

According to this authority, it is the duty of the reviewing court, if doubt prevails as to the existence in the record of a scintilla of evidence, to resolve such doubt in favor of the party who would be injured by the absence of a scintilla of evidence, because the holding is that it is error to direct a verdict against the plaintiff, if, by giving to the evidence the most favorable interpretation which any of the evidence will reasonably warrant, there would be a scintilla of evidence to support the claim of the plaintiff, or some evidence tending in that direction.

Again, one is impressed with the duty resting upon a reviewing court that its search of the record be not only minute, but reach to every corner of the record, and if an atom of evidence be found it must be viewed most favorably to him who contends for its existence.

There are known to the law positive evidence, and circumstantial evidence, and this mere trifle of evidence may be a mere circumstance, or it may be an inference, or a deduction that exists in the record, flowing from any situation in the record of the case. Thus at every turn it is manifest that we have here a duty totally different than the comparatively easy and normal judicial obligation of asserting whether there is a preponderance of evidence, credible evidence, or some evidence of a substantive nature, to support the claim of the party seeking to show its existence. Thus it is apparent that all authorities cited in states whose courts are not bound by the scintilla rule have no application to the case at bar, because in Ohio we are bound by that doctrine, and it is only the existence of such a doctrine that necessitates in Ohio such a review of the record that if there be a mere trifle of testimony bearing upon the contended issue it may not escape the judicial eye.

Now in the instant case, bearing in mind the character of the inquiry, as above noted, we learn that the automobile was owned by the wife, who was an occupant of the car prior to and at the time of the accident. Keeping in mind that the scintilla rule is a mere trifle, it would not he doing violence to reason to say that the occupancy of the machine by the owner at the time of the accident, when driven by another, is a mere trifle, gleam, or glimmer, by way of inference at least, because of the relationship of owner and driver, of evidence of respondeat superior. In the instant case it is unnecessary to hold the view that the mere presence of the owner is sufficient to establish agency or the relation of master and servant, because there are other elements in the case which make it unnecessary to base our finding upon that fact alone. And yet, the above analysis, as to the meaning of a scintilla of evidence might establish the doctrine of respondeat superior, because there is an inference, from the relationship and the presence of the owner during the operation of the car, equivalent to a mere trifle or glimmer of evidence. Inferences in records are sometimes determinative of the issues, and are equal very often in credibility to positive evidence, and arising from circumstances are entitled to merit. It is unnecessary to hold in the instant case, as before noted, that the mere presence of the owner, and the circumstance surrounding that fact, alone create a scintilla of evidence, because of other facts in the case, and among them are the situations created by starting from the Rootstown farm, owned by the wife, on an errand in behalf of the wife, to-wit, to go to her home on Euclid avenue, and the purchase of a spraying machine by the husband for use upon the wife’s farm, as well as upon others, and the existence of the eggs in the machine, which latter fact leaves the inference that the eggs came from the farm of the wife in Roots-town, Ohio, and were on their way to market for the owner of the farm.

The fact that the husband had errands of his own does not dispose of that status in the case which shows that his wife also had objects and purposes in making the trip, as above noted, and, even if their errands were in common, what the driver was doing for the owner separable from what he was doing for himself would certainly be at least a mere trifle, or a gleam of evidence touching upon the doctrine of respondeat superior, and therefore the existence of a scintilla of evidence.

It is true, we are sighting fine. It may be said that we are giving a very narrow construction to the record, and it may be said that we are giving an unnatural interpretation of the facts, and that our judicial attitude is contrary to all normal rules, but a scintilla of evidence is a mere trifle of evidence, and the Supreme Court says that “it is error 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.”

In the case of Powell v. Newman, 14 Ohio App., 479, on pages 483 and 484 of the opinion, we read:

“In these cases the court held that the master was not liable for injuries resulting from the negligence of his employe [referring to Railroad Co. v. Little, 67 Ohio St., 91, 65 N. E., 861; White Oak Coal Co. v. Rivoux, 88 Ohio St., 18, 102 N. E., 302, 46 L. R. A. (N. S.), 1091, Ann. Cas., 1914C, 1082, etc.], in charge of his automobile, occurring at a time when the servant had departed from his master’s business and was engaged in his own business or in pursuit of Ms own pleasure. Thus two principal questions must be determined in all cases of respondeat superior: 1. The existence of the contractual relation as master and servant. 2. Whether the act or omission, which is the basis of the particular proceeding, was one performed within the scope of that relation.
“It may happen, of course, on occasion, that a motor car or other vehicle is operated by a person between whom and the owner there is no actual contract relation of employment, as, for instance, when the car is being driven by a friend upon invitation or by permission. In such case, if the owner is present, the principle of control would govern and the law would imply an agency upon the part of the operator, which would render the owner liable for his acts upon the doctrine of respondeat superior. Commonwealth v. Sherman, 191 Mass., 439 [78 N. E., 98], and Simeone v. Lindsay, 6 Pennewill (Del.), 224, 65 A., 778.”

We do not think that Elms v. Flick, 100 Ohio St., 186, 126 N. E., 66, Bretzfelder v. Demaree, 102 Ohio St., 105, 130 N. E., 505, and White Oak Coal Co. v. Rivoux, Admx., 88 Ohio St., 18, 102 N. E., 302, 46 L. R. A. (N. S.), 1091, Ann. Cas. 1914C, 1082, apply, for the reason that the owner of the car was not present as an occupant of the car while being driven, as in the instant case, and this distinction is so substantial that we fail to see the merit of the authorities cited. In order that the authorities cited by able counsel from states beyond the borders of Ohio may be applicable the doctrine of the scintilla rule must exist within the jurisprudence of the authorities cited; and here, where our Supreme Court has determined the method of interpretation of the scintilla rule by no uncertain language, that governs. Therefore the lower court erred in sustaining the motion to direct a verdict in favor of defendant.

Holding these views, the judgment of the lower court is hereby reversed, and the case is remanded for further proceedings, according to law.

Judgment reversed.

Levine, J., concurs.

Vickery, J., not participating.  