Statement of the Case. "Q. There was no agreement between you? A. None whatever. "Q. Then is it with or without your consent that the child is given a religious training? A. Well, we have not discussed that because the child isn't old enough to realize what that means; whenever the child gets to that stage we will discuss that. "Q. At the present time, or I mean, during this time that this accident occurred, when your wife was taking the child to church, it was with your knowledge, wasn't it? A. I can't say that it was, no; as I said before, she takes the child wherever she goes; I don't question her. "Q. I don't mean on this particular occasion, but you knew she went to church, didn't you? A. I know she goes to church whenever she pleases, yes. "Q. And you knew the child was going with her constantly, didn't you? A. Well, no; she doesn't take the child with her every time she goes to church. "Q. I mean at that time, in April of 1917? A. What do you mean? "Q. Wasn't it her habit of taking the child with her on those occasions when she went to church? A. When she took the car out she would take the child; when I met her I didn't ask her whether she went to church or whether she took the child to church. "Q. But she had your authorization to do so if she saw fit; you left the religious training of the child to her, did you not? A. I didn't say that; Opinion, per JONES, J. I said when the child got old enough we would discuss that between ourselves." Having previously overruled the motion for a directed verdict, the court in its general charge instructed the jury as follows: "In this case the plaintiff claims that the wife, Mrs. Bretzfelder, was the agent or servant or employe of the husband. The husband is not liable for the wife's alleged negligence merely because of such relationship. His liability, if any, must rest upon the relationship of principal and agent or that of master and servant. Defendant's mere ownership of the automobile is not enough to create a liability for his wife's negligence, if she was negligent. To have that result, the act complained of must have been done within the scope of the wife's employment and in conducting what is called the husband's business or affairs; although the authority to so represent the husband need not be expressed in words, but may be implied from the precedent course of conduct." Mr. H. Frank Van Lill, for plaintiff in error. Mr. Joseph W. Sharts, for defendant in error. JONES, J. The sole question in this case is whether the testimony, on behalf of plaintiff below, giving it the most favorable phase, was sufficient to establish liability upon the part of the husband for the tortious act of his wife upon this occasion. The trial court recognized that the relation of principal and agent or master and servant must have Opinion, per Jones, J. existed between the husband and wife before the former could be charged with the latter's negligence, and that the defendant's mere ownership was not sufficient to create liability for his wife's negligence. As an abstract proposition of law the charge was not erroneous. Did the testimony, however, establish any agency relation between them, or tend to show that the act of the wife in taking the husband's automobile upon this occasion was performed either in the scope of the wife's employment or in conducting what is called the husband's business or affairs, as charged by the court? At common law, unquestionably, the husband was liable for acts of this character committed by his wife. This principle was then established because of the servitude of marriage, whereby the husband not only possessed control over her person and acts, but, upon coverture, became entitled to her goods and chattels, and had the absolute right to reduce her choses in action to possession during her life. The wife's existence was merged in that of her husband, and in actions against herself her husband was required to be joined. However, in the development of our statute law, this principle of liability upon the part of the husband was abrogated by the adoption in various states of certain statutes granting the wife the freedom of contract, the right to acquire and dispose of real and personal property, and providing that neither husband nor wife should be liable for the tortious acts of the other because of the marital relationship. In our own state the statute provides: "Neither husband Opinion, per JONES, J. nor wife, as such, is answerable for the acts of the other." Section 8002, General Code. In Elms v. Flick, 100 Ohio St., 186, there was an attempt to fasten liability upon the father, who owned the automobile, because of its negligent operation by an adult son. It was there held that the fact of relationship did not give rise to liability upon the part of the father, but that the basis of liability in such action rested upon the principle of respondeat superior. So it may be stated in this case that the court properly charged that the fact of marital relationship could not be availed of to entail liability upon the husband for the negligent acts of the wife. The case of White Oak Coal Co. v. Rivoux, Admx., 88 Ohio St., 18, announces the well-known legal principle that an owner of an automobile is not liable for the negligence of his employe unless it is proven that the latter was, at the time, engaged upon his employer's business, and that the fact that the automobile is owned by the employer and was negligently operated by his employe does not make a prima facie case against the owner. Under the foregoing principles of agency, established in this state, can it be said that the plaintiff has proven every fact vital to her recovery? The court of appeals in reviewing the case conceded that the case was not free from doubt. It is indisputable that the plaintiff in order to recover must prove that there existed between the husband and wife the relation of principal and agent or master and servant, and that at the time of the negligent operation of the car the wife was engaged in the Opinion, per JONES, J. Iurtherance of the husband's business or in the execution of the husband's orders. Was there any proof tending to show that the wife was engaged in either? It is true that the husband furnished the car for the use of the family and permitted his wife to use it for her own pleasure and recreation whenever she saw fit; she also had the privilege of taking the three-year-old child with her whenever she so desired; but in taking the car upon the occasion in question, and while her husband was absent from the city, there is not the slightest tendency to show that the automobile was used either in her husband's business or in the execution of his orders. She was acting upon her own initiative and not upon his. There can be no possible liability attaching to the husband unless it be assumed that such liability arose because of the fact that she was taking this small child with her for religious training. Even if this be so, this privilege was also exercised upon her own motion and not upon his. There was no legal obligation upon the part of the husband to send the child to the Catholic or any other church. There was a moral obligation upon his part to do so when the child arrived at an age of understanding, but that obligation likewise existed upon the part of the mother; and if in the exercise of her moral obligation she took the child to church she was simply carrying out her own religious duty and was in no sense acting either in the execution of her husband's orders or in the furtherance of his business. A wife, like another, may sustain the relation of agent to her husband. This relationship may be |