Oswell v. Smoyer

OPINION Per CURIAM: Plaintiff sued defendants, Olive Vine Smoyer and her daugter Ellen R. McMillan, in the Court of Common Pleas to recover for loss of services of, and expenses incurred by him in connection with personal injuries sustained by his minor son, Bruce Oswell, by being struck by an automobile operated allegedly, carelessly and negligently by defendant, McMillan, in the city of Cleveland. Plaintiff based his right to recover damages from both defendants on the ground that at the time of the collision defendants were engaged in a joint enterprise because defendant Smoyer was holding defendant McMillan’s baby in the back seat of the McMillan automobile while defendant McMillan was operating it and because defendant McMillan said she would have granted any reasonable request made by defendant Smoyer, and that the relationship of principal and agent existed between defendants Smoyer and McMillan. The trial judge sustained the motion of defendant Smoyer to direct the jury to return a verdict in her favor made at the close of plaintiff’s case, overruled a like motion as to defendant McMillan, directed the jury’ to return a verdict for defendant Smoyer and entered judgment accordingly. [503] Plaintiff dismissed his action against defendant McMillan and appealed to this court on questions of law from the judgment of the trial court entered upon the verdict of the jury directed for defendant Smoyer. There is no evidence to support the claim of control or right of control of the automobile on the part of defendant Smoyer which disposes of plaintiff’s claim of joint enterprise on authority of Bloom v. Leech, Admr., 120 Oh St 239, 166 N. E. 137. As to agency, it is neither pleaded, nor is there any evidence to support such claim. The judgment of the Court of Common Pleas is affirmed. Exceptions noted. Order See Journal. NICHOLS, PJ, PHILLIPS and GRIFFITH, JJ, concur.