#### Elliott *v.*Harding.

*Negligence*— Automobiles—Dangerous *instrumentality*— Operation *by unskilled driver*— Question *for fury*— Competency *of operator*— Liability *of parent for son’s acts*— Combined *negligence*— Intrusting *to incompetent driver and negligent operation.*

1. While an automobile is not a dangerous instrument *per se,*it may become such if operated by one who is unskilled in its use; and, where the owner intrusts such a machine to an inexperienced or incompetent person, liability for damages may arise.

2. Where a father intrusts his automobile to his son, a youth of 14 years, unaccustomed to its use, for purposes wholly apart from any business or enterprise of the father, the question of competency is one for the jury under proper instructions.

3. In such case the liability of the owner would not rest upon ownership or agency, but upon the combined negligence of the owner and driver; negligence of the father in intrusting the machine to an incompetent driver, and negligence of the son in its operation.

(No. 17634

Decided May 8, 1923.)

Error to the Court of Appeals of Butler county.

The petition filed in the trial court alleged that on July 18, 1919, defendant Charles T. Elliott, who lived about three miles south of Middletown, Ohio, and who was the owner of several automobiles, “authorized, permitted and directed his minor son, of the age of about 14 years, to have charge of and drive said automobile upon the public highway; that said minor son, on account of his youth, lack of skill, and want of experience, was incompetent to operate *502said automobile, and was au unfit person to be given charge and control thereof, and was a menace to persons and automobiles traveling upon the public highway.”

The petition further alleged that while said automobile was in charge of said son the same was carelessly driven, and, on account of youthfulness, lack of skill, and want of experience, was driven at an unlawful and dangerous rate of speed, and that in the attempt to pass another automobile, in which the plaintiff below was riding as a passenger, a collision occurred resulting in serious damage to the plaintiff.

There was no claim that the automobile was used in carrying on or aiding any business or enterprise in which the father was beneficially interested.

The testimony disclosed that the son had never used the car prior to that date, and that although he had frequently requested the use of the car such requests were always refused. The father testified that he did not know of the son’s ability to drive the car, but that the son told him that he was competent, and that he permitted the son to have the use of the car entirely on the son’s representations. The car was desired by the son for the purpose of meeting a visitor at the station at Middletown, a young man, and to bring him to the family residence. Permission was given on July 17, the father then starting on a journey. The car was not to be used until the next day. As to the exact instructions given, the father testified:

“I told him he could take the car to the Big Pour station, get Arnold Tietig, take no one else into the *503ear, and bring Arnold Tietig home in the car, but not touch it again.”

Acting upon these instructions, the son took the car the next day, went to the station, met his guest, and, instead of returning directly home, went to the home of two young ladies in Middletown, where the two ladies became occupants of the ear. The guest and one of the young ladies occupied the turtleback of the car, and the other young lady occupied the seat of the Ford runabout with the son Charles Elliott, Jr. In this .manner they made the trip to the Elliott home. After they had arrived at the Elliott home and the baggage of Tietig had been left there, the two young ladies took the seat of the Ford, Miss Phillips taking the driver’s place, Tietig sitting upon the right door, and young Elliott standing on the left running board. They again started toward Middletown, and after they had proceeded some distance, Miss Phillips still driving, they overtook the car in which the plaintiff was riding, and in some manner the collision occurred from which resulted the injuries claimed to have been sustained by the plaintiff.

At the trial, at the close of plaintiff’s testimony, the court directed the jury to return a verdict in defendant’s favor. Upon error being prosecuted to the Court of Appeals, the judgment of the common pleas court was reversed, and the cause remanded for new trial.

*Mr. W. C. Shepherd*and *Mr. B. F. Ilanvitz,*for plaintiff in error.

*Mr. Justin Harding*and *Messrs. Shoits $ Millikin,*for defendant in error.

*504Marshall, C. J.

In order that the bench and bar may not misunderstand the scope of this decision, or misconstrue the breadth of the principles herein declared, it is deemed proper to state what this action is and what it is not. While the petition contains an allegation of the relation of parent and child, there is no allegation, nor is there any proof, that the son was engaged in any business or enterprise in which the father was beneficially interested. The' allegations of the petition do not permit any recovery in this case upon the mere basis of the relation of father and child. Even if such a contention were made, it is definitely settled by the former decisions of this court that, in a case where the father is the owner of a machine which is being used by the son solely for the son’s pleasure, there is no liability on the part of the parent on the basis of relationship alone, and that in all such cases it is necessary to establish the further relation of principal and agent, or master and servant, and that claims for damages are governed by the rules applicable to such relations only. This is clearly the pronouncement of this court in the case of *Elms*v. Flick, 100 Ohio St., 186, 126 N. E. Rep., 66.

Neither is the allegation of the relation of parent and child asserted in this case as the basis of recovery on the ground of the doctrine of “family purpose.” That the rule of liability does not exist on that ground has been settled so far as this court is concerned in the case of *Bretzfelder*v. *Demaree,*102 Ohio St., 105, 130 N. E. Rep., 505. The liability of the owner of an automobile for damages caused by its negligent operation while in the hands of a third party has by the former decisions of this *505court been placed entirely upon tbe basis of *respondeat superior.*This court is not, however, committed to the doctrine that liability can only, be based upon that principle. The fact that the cases heretofore passed upon by this court have only dealt with facts and conditions where the persons operating the car were adult persons skilled and experienced in the operation of such machinery ■ has evidently caused some misapprehensions. In: the case at bar this court has for the first time been confronted by the question of the liability of the owner of an automobile for damages upon the allegations that the automobile has been intrusted by him to the care* custody and operation of an incompetent person. If an automobile were classed as a dangerous instrumentality, like a locomotive, firearms, explosives, and similar agencies, the question would be one of little difficulty. The authorities are quite in harmony that if dangerous instrumentalities are intrusted to persons unskilled in their use, or unaccustomed to operate them, and the owner has knowledge of such incompetency, and the person so using such agency, by his negligent operation of the same, causes damage to the persons or property of others, the owner will be held responsible therefor. The authorities are quite uniform that an automobile is not such a dangerous agency, and this court is practically committed to that doctrine. The automobile has become an important factor in our present-day civilization, and under modern modes of living, and it cannot be doubted that it has an important place, not only in the business world, but also in the happiness of the people. It is an important factor in the family life, and while the father *506owes a moral and ethical obligation to the members of his family to provide for their comfort, convenience, and entertainment, there. is not a legal obligation so to do upon which to predicate' liability of the father for all damages done by. members of his family while using the car solely for their comfort, convenience and enjoyment, unless the same is connected in some way with the business of the father, or directly pursuant to the father’s orders. By reason.of these considerations the courts should not lay down rules whereby owners of cars will fear to lend them to persons competent to use them, and skilled in their use, and there are obvious reasons why owners should even be encouraged to extend such favors, in a proper way, to their fellow beings. On the other hand, it is well known that the numbers of automobiles in everyday use throughout our own state and other states of the Union render the operation of such machines highly dangerous, and that collisions between machines have become alarmingly frequent, with their attendant loss of life and damage to person and property, so that it is apparent that there must be some regulations and safeguards against the operation of machines by persons who are not competent to operate them. While, as before stated, an automobile is not *per se*a dangerous instrument, it is, on the other hand, by reason of its weight and power and capability of being operated at great speed, an instrument of highly dangerous potentialities, and all who own or use them must be held to the use of reasonable care and caution to avoid injury to all those who are brought in proximity to them. Such instruments are subject to the principle that care must be pro*507portioned to the danger to he avoided. On the principle that a man must so use his own as not to injure the person or property of another, and following the same course of reasoning, the courts have declared him liable who sets in motion inanimate forces which escape from his control and inflict damage. The petition in this case is not framed upon the theory that the automobile is a dangerous agency *per se,*but upon the theory that it is an instrument of dangerous propensities and potentialities, and that it was intrusted by the owner to a person who, on account of his youth, lack of skill, and want of experience, was incompetent to operate it. Liability is claimed in this case upon no different theory and upon no different basis than if the automobile had been intrusted to a person of youthful years and inexperience who was not in any way related to the owner.

The pleadings and the proof in this case must be measured not by the rule of the doctrine of *respondeat superior,*but by the rule of liability for negligence in intrusting the machine to a person alleged to be so young, unskillful, and inexperienced as to render him incompetent to operate it, and upon the further theory that such alleged incompetence of the son was coupled with alleged negligence, resulting in damage to third persons. Upon this theory, quite apart from any consideration of the doctrine of *respondeat superior,*we have carefully examined the record of the testimony offered by the plaintiff below, and we agree with the Court of Appeals that there was testimony of such character as tended in some degree to support the allegation of the incompetency of Charles Elliott, Jr., and further testi*508mony tending in some- degree to establish the father’s knowledge thereof; that it was error on the part of the trial court to direct the jury to return a verdict in defendant’s favor at the close of plaintiff’s testimony; and that such testimony should have been submitted to the jury under proper instructions, or, at least, the motion to direct a verdict overruled and the defendant put upon his defense.

Although we have so far discussed this matter upon principle, authority is not lacking to support the views herein expressed. In the case of *Gardiner*v. *Solomon,*200 Ala., 115, 75 So. Rep., 621, L. R. A., 1917F, 380, the following is declared in the syllabus:

“The owner of an automobile is liable for injury inflicted on a pedestrian by an adult son in the use of a machine under circumstances where the doctrine of *respondeat superior*would not apply, if the son was, to the knowledge of the owner, incompetent to handle the machine with safety.”

From the opinion (200 Ala., at page 117, 75 So. Rep., 623 [L. R. A., 1917F, 380]) we quote:

“While automobiles are not inherently regarded as dangerous instrumentalities, and the owner thereof is not responsible for the negligent use of same, except upon the theory of the doctrine of *respondeat superior,*yet there is an exception if he intrust it to one, though not an agent or servant, who is so incompetent as to the handling of same as to convert it into a dangerous instrumentality, and the incompetency is known to the owner when permitting the use of the vehicle.”

In *Daily*v. *Maxwell,*152 Mo. App., 415, 133 S. W. Rep., 351, recovery was sought against a father for injuries inflicted by bis son, who was operating the *509machine with the father’s consent, it being shown that the son was but 16 years of age. In that case the court made the following observation, at page 125 of 152 Mo. App., at page 353 of 133 S. W. Rep.:

“Boys are very apt at learning how to run vehicles of all sorts — more apt than men — and the evidence before us is all to the effect that Ernest was a bright boy and careful, too, for one of his years. But he was only a boy and the jury were entitled to say, from the mere fact that he was only sixteen years old, that he lacked the judgment, discretion and care to be expected of a mature person, and which was essential to the proper and careful operation of a vehicle so powerful as ah automobile.”

It should be stated that other courts in other cases have declared a different doctrine, but we think the principles herein declared sound the safer and more humanitarian doctrine.

Inasmuch as under the conclusions we have reached the cause must be remanded to the court of "common pleas for a new trial, we refrain from any discussion or analysis of the testimony. The testimony of the defendant has not yet been offered, and the cause should be retried uninfluenced by any expressions on the part of this court as to the conclusions which should be reached by the jury upon the testimony of plaintiff’s witnesses adduced at the former trial. The judgment of the Court of Appeals is therefore affirmed.

*Judgment affirmed.*

Wanamaker, Jones, Day and Allen, JJ., concur.

Matthias, J., concurs in the syllabus, but not in the judgment.