Marmorstein v. Schuck

163 N.E. 508, 29 Ohio App. 229, 6 Ohio Law. Abs. 231, 1928 Ohio App. LEXIS 569

Opinion

OPINION OF COURT.

The following is taken, verbatim, from the opinion.

VICKERY, J.

Whether the mother is the agent for the father, in the care and custody of the minor children, one might doubt, and the writer of this opinion doubts it very gravely, but it will not be necessary to decide the present case upon that question. It will be noted, from the 24th OS. supra, that two allegations were necessary; that the' child that was injured was in the custody of the agent of the father, and that the father’s agent was guilty of negligence. Now let us assume, for the sake of argument, that the custody of Beverly Jane Schuck was in the mother, as agent of the father. Then, in order to come within the rule laid down in the 24th OS., supra, it was necessary for the mother to be guilty of contributory negligence in order to bar the father, ■the principal, from recovering. We have gone over this record and the record in the Beverly Jane case, and we can see no negligence upon the part of the mother.

The elevator being faultily constructed, as we have held in the Beverly Jane case, the injury resulting through the negligence of the owners of the apartment house, and the father being legally obliged to pay for medical services and attention to his little girl, there being nothing in the record to show that they were unreasonable or were not properly chargeable to the father, we do not see any reason why the father should not recover.

There being.no errors in the judgment of the court, it will, therefore, be affirmed.

(Sullivan, PJ. and Levine, J., concur.)