LIABIBITY FOR SON’S NEGLIGENCE IN OPERATING AUTOMOBILE.

Court of Appeals for Tuscarawas County.

#### John Reese v. C. J. Waltz.

Decided, January 31, 1921.

*Charge of Court*— Error *in Treating Failure to Specifically Deny Certain Allegations of Negligence as Equivalent to an Admission of Their Truth*— Necessity *of a Finding as to Proximate Cause.*

1. A charge to a jury should not b.e given over to abstract questions of law, but should set forth the law applicable to the proven facts of the case and direct the attention of the jury to the controlling issues of fact.

2. Where the defendant, in a negligence case involving a collision of automobiles, has denied “all the material allegations of the peti tion," one of which was that the accident was due to the negligence of the driver of defendant’s car, it is prejudicial error in the charge to the jury io speak in such a way of defendant’s failure to specifically deny the happening of tlm accident, or the resulting damages, or that it was due to the negligence of defendant’s driver, " as to create the impression defendant had 'admitted the truth of these issues.

3 It is also prejudicial error to charge the jury that a verdict should be returned for the plaintiff, if they found from a preponderance of the evidence that the defendant sanctioned, -permitted and consented to the driving of the car by his son at the time of the happening of the accident, without having first found that the negligence of the said son was the proximate cause of the accident.

*Bowers*c& *Bowers*for plaintiff in error.

*Homer 1. N. Stafford, contra.*

Houck, J.

The parties here stand in the reverse order from where they stood in the common pleas court.

The suit below was for damages sought to be recovered from John Reese, by C. J. Waltz, on account of a -collision between automobiles owned by said parties. The plaintiff alleged carelessness and negligence on the part of the driver of the Reese car, to-wit: Vernon Reese, a son of the said John Reese. The' petition alleged,:

> <:That at the time of the collision between said automobiles that the defendant’s automobile was being managed, operated *98and under tlie control of a son of the defendant, Vernon Reese, a member of the family of the defendant and with full knowledge and consent of said defendant and as his agent. All of which damage, as aforesaid, was caused wholly as a result of the carelessness and negligence on the part o f said Vernon Reese, the son and agent of said John Reese.”

The defendant answered as follows:

> “Admits that the defendant on the 24th day of January, 1919, was the owner of a certain eight cylinder passenger touring Appuerson automobile.

> “Admits that at said time, defendant’s son, Vernon Reese, was operating the said ear upon the street in the city of Uhrichsville, but avers that said Vernon Reese in the operation of said car was not the ageiit of the defendant, but that he had wrongfully taken said machine from the barn of the defendant, and without the knowledge and consent of said defendant, and that he was operating the same contrary to defendant’s wishes.

> “Defendant further answering denies each, all and every other allegation in the petition of plaintiff, not hereinbefore specifically admitted to be true.”

The cause was submitted to a jury and a verdict returned for the plaintiff. A motion for a new trial was filed, heard and overruled, and a judgment entered on the verdict.

Error is prosecuted to this court seeking a reversal of the judgment entered in the lower court.

We have examined all of the alleged errors set out in the petition in error, but we do not deem it necessary to refer to but one in this opinion, namely: Did the trial judge err in his general charge to the jury ?

On page 119, as found in the court’s charge to the jury, he said:—

> “Now the defendant does not specifically deny the damages or the happening of the accident; does not' specifically deny that it happened by the negligence of the driver of the defendant’s car.”

This was in substance and effect telling the jury that the defendant admitted that there was an accident and that it was caused by the negligence of the driver of the defendant’s ear.

*99The defendant in his answer made a general denial of all of the material allegations of the petition of plaintiff, one of which was that the driver of the car was not negligent in its operation.

The question of negligence on the part of the operator of the ear being denied by defendant, it was one of the questions put in issue in the trial of the case, and devolved upon the plaintiff to establish by proper evidence.

We find and hold this part of the charge not only misleading but highly prejudicial and erroneous to the rights of plaintiff in error.

As appears at the bottom of page 119, the court charged the jury:—

> “If you find that he — the son — was operating that car with the consent and knowledge of the defendant, his father, I charge you that the recovery would have to be for the plaintiff.”

On page 122 the court said:—

> “Now if the testimony and circumstantial evidence here be sufficient to convince you, by a preponderance of the evidence that this father did saction, did permit, did let, I won’t say approve but did consent and let that boy drive this car, on this partieular'oecasion, then your verdict should be for the plaintiff.”

It will be observed that this instruction directed the jury to find for the plaintiff, if it found that the defendant approved and permitted his son to operate the automobile in question at the time of the accident.

One of the real questions at issue and necessary to be established was as to the proximate cause of the damage to the automobile of the plaintiff below, and before a verdict in favor of the plaintiff could be legally had, the evidence must, show that the son was not only authorized to operate said car, at said time, but that the damage complained of was caused by the negligence of the son of plaintiff. •

This instruction fails to show that the latter question of fact was given, in charge, to the jury.

It follows that the trial judge erred to the prejudice of plaintiff in error in this respect.

We have read with care the charge, as given to the jury by *100the judge presiding at the trial, and there is no instruetion therein to the jury that before the plaintiff ean recover that it must find, by a preponderance of the evidence, that the proximate cause of the damage to the automobile in question was the negligence of Vernon Reese, the son of the defendant.

We think that it is a settled rule of law that the charge of a trial judge to a jury should not be as to abstract propositions of law. It must embody the law applicable to the proven facts, and the instruction to the jury should be of such a nature as to direct its attention to the controlling issues of fact in the ease.' This is essential and necessary in order that the verdict be based upon the real issues to be determined in each ease.

“A charge is erroneous which permits the plaintiff to recover on a preponderance of the evidence, regardless of his own possible negligence, and without the negligence of the defendant being the direct or proximate cause.” *Traction Company*v. *Overschmid,*12 C. C. (N.S.), 262.

> “That the general rule is, that where the parties are mutually in fault, or in other words, where negligence of the *same nature,*in each party, has co-operated’to produce the injury, the party sustaining the loss is without remedy; but that this, rule is subject to the following qualifications:

> 1. The injured party, although in fault to some extent, at the same time may, notwithstanding this, be entitled to reparation in damages for an injury, which could not have been avoided by ordinary care on his part.

> 2. .When the negligence of the defendant in a suit upon such ground of action is the proximate cause of the injury, but that of the plaintiff only *remote,*consisting of some act or omission, not occurring at the time of the injury, the action of reparation is maintainable.” *Kershacker*v. *C. C.*& *C. R. R. Co., 3*Ohio State, p. 196.

It follows, from what we have already said,.that the common pleas court erred in its charge to the jury, and the judgment of that court, in this ease, is reversed, and the cause remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

Shields, J., and Patterson, «7., concur.