Epitomized Opinion

First Publication of this Opinion

This action was begun by Worley in the Franklin County Common Pleas.

Worley was struck and injured by an automobile owned by defendant, Robert Glass. The. machine was driven by Glass’ son, who was 17 years of age. The petition did not allege in-competencq of the driver, and no evidence was introduced to prove it. Judgment was rendered for the defendant upon the ground that there was no agency and moreover there was no evidence that he was negligent in. trusting the car to an incompetent driver. The judgment was confirmed by the Court of Appeals of Frank-lyn County. Later this application for a rehearing was filed based upon the case of Elliot v. Harding. In denying the application, the Court of Appeals held:

1. That the case of Elliott v. Harding (1 Abs. 204) was not in point because in that case the pleadings raised the issue of the incompetency of the driver, and there was evidence to prove that the driver was not only a minor hut that he was incompetent, and therefore the owner was negligent in that respect. In the instant case the pleadings raised no such issue, and while the driver was only 17 years of age, there was no evidence introduced tending to show that he was incompetent to drive the car,

2. The owner of a machine is not liable by the mere fact that the machine is driven by a member of his family unless he is negligent in permitting a person to drive the automobile who is incompetent to operate the same.