OPINION
This is an appeal on law from the Common Pleas Court of Montgomery County from a judgment entered on a verdict rendered in favor of the plaintiff. The action is one for wrongful death arising out of an automobile accident which occurred on U. S. Highway No. 25 near the boundary line between Warren and Butler Counties.
The defendant-appellant was engaged in the sale of both new and used automobiles in the City of Miamisburg, Ohio. The driver of defendant’s automobile had been employed as a salesman by the defendant on March 15, 1949. The accident occurred on April 23, 1949, at about eight-thirty o’clock in the morning. The salesman resided in Cincinnati, Ohio, and was using an automobile owned by the defendant to travel from his residence to the defendant’s place of business at the time the accident occurred. The salesman’s hours of employment were from nine A. M. until five-thirty P. M.
The salesman was driving in a northerly direction and the plaintiff’s decedent was driving in a southerly direction at the time of the collision. There is evidence supporting the claim that when the two automobiles were sixty yards apart two dogs started to cross the highway from the east side of said highway; that the salesman’s automobile struck the first dog and that he at that time swerved his automobile from the northbound traffic lane across the center line of the highway and collided with the automobile being driven by plaintiff’s decedent in the southbound traffic lane.
In her amended petition plaintiff alleges five specifications of negligence:
(2) In failing to keep defendant’s automobile under control;
(3) In operating defendant’s automobile at a high rate of speed, to-wit: 55 miles per hour, a speed greater than is reasonable and proper under the circumstances there and then existing;
(4) In failing to change or divert the course of defendant’s automobile after defendant’s agent saw, or in the exercise of ordinary care ought to have seen, the dangerous and perilous position of the automobile of plaintiff’s decedent;
(5) In failing to keep defendant’s automobile on the right side of the road.
The defendant filed an amended answer denying the allegations of negligence and specifically denying that the driver of the automobile owned by the defendant was his duly authorized agent as alleged or that he was acting in the service of or on the business of the defendant, and as a further defense pleaded contributory negligence on the part of the plaintiff. To the amended answer the plaintiff filed a reply denying each and every allegation set forth in the amended answer inconsistent with the averments of plaintiff's petition.
The appellant in his brief states that there are two principal issues presented: The agency of the driver of defendant’s automobile, and whether the negligence of defendant’s driver, if any, was the proximate cause of the collision.
Fourteen errors are assigned. The first, second and third errors assigned relate to the admission and exclusion of evidence. One of the plaintiff’s witnesses, an occupant of the automobile driven by plaintiff’s decedent, testified that “As he was getting closer and closer, and we were getting closer to the dogs the first dog was near the center of the roadway, and about this time the on-coming car, in an attempt to avoid hitting the second dog, swerved into our Jane, hitting the first dog.” Defendant’s counsel interposed an objection and moved to strike. The record is none too clear whether the entire answer was sought to be stricken, or only the words “in an attempt to avoid hitting the second dog.” In his brief counsel for defendant contends the entire answer should be stricken. The objection and motion were overruled. The words last quoted should have been stricken, but we find no prejudicial error resulting. The remainder of the answer was competent, relevant and material.
“Against the objection of the defendant the trial court permitted witnesses to testify that the plaintiff’s intestate was in the line of promotion when he received the fatal injuries. The jury were otherwise fully informed as to the intestate’s habits, health, position and capacity to earn. These and other like circumstances constituted the existing facts from which the jury were to determine the amount of damages which they should assess. The evidence to which the objection was made was introduced to show a supposed probability that his capacity to earn would have become greaterPage 453in the future. It started an inquiry which could have no other effect than to consume time unduly and to introduce speculative considerations into the assessment of damages. Brown, Admr. v. The Chicago, R. I. & Pac. Ry. Co., 64 Iowa, 652.”
We are unable to determine from the opinion in that case the source of information of the witnesses, or whether the witnesses were properly qualified to testify on the subject. That case cannot be considered a precedent on the question raised here. In the instant case the testimony was in the nature of opinion testimony given by witnesses qualified as experts. The witnesses were given a hypothetical set of facts and asked to state what chances such a hypothetical person possessed for promotion. The general rule is that an opinion or conclusion of a witness is incompetent and inadmissible. The reason for such exclusion is that it invades the province of the jury as triers of the facts. However, exceptions to the general rule have been found to be necessary to the proper administration of justice. A well recognized exception is where scientific and specialized knowledge or experience is required in a particular art, science, trade or business and for which the general common sense and practical experience of the jury are inadequate. Vol. 17 O. Jur. page 421, Section 331. Any evidence which would assist the jury in fixing the reasonable expectancy of future earnings Was competent. The work in which the plaintiff’s decedent was employed was of a highly technical character in a field concerning which the public and the jury would have little knowledge, and the system under which promotions were granted was likewise complicated and technical. It therefore was the obligation, as well as the privilege, of the plaintiff to offer any probative testimony as to the probable future earnings of plaintiff’s decedent. In our opinion this evidence was competent.
In this type of action it is proper to introduce by a qualified witness the cost of purchasing a simple annuity based on the life expectancy of the d'ecedent and yielding two-thirds of his annual salary at the time of his death, which was conceded to be the amount contributed toward the family support. Bartlebaugh v. Pennsylvania Rd. Co., 150 Oh St 387, 82 N. E. (2d) 853.
Photographs of the highway at the place of collision, taken the day after the accident, were properly admitted as the evidence shows that the marks on the highway shown on the photographs existed immediately after the collision. There was evidence to support the conclusion that the photo
Prior to the trial the deposition of the defendant’s salesman was taken and on cross-examination at the trial plaintiff’s counsel questioned the salesman relative to statements made in the deposition at variance with his testimony in court respecting the speed of plaintiff’s decedent’s automobile immediately before the collision. Counsel for the defendant, on re-direct examination, sought to establish that in the deposition the witness had made other statements respecting the speed of decedent’s automobile consistent with his testimony in open court. Objection was sustained to defendant’s counsel reading such questions and answers from the deposition. Inconsistent statements may be shown on cross-examination to impeach a witness. Coca Cola Bottling Works Co. v. Meyer, 28 Oh Ap 468, 162 N. E. 826; Sabo v. State, 29 Oh Ap 200, 163 N. E. 496; Saunders v. Wiggins, 48 Oh Ap 174, 192 N. E. 745. But an impeached witness cannot be rehabilitated by showing prior consistent statements. Cincinnati Traction Co. v. Stephens, 75 Oh St 171, 79 N. E. 235; Miller v. Piqua Transfer and Storage Co., 57 Abs 325; Vol. 42 O. Jur. page 437, Section 429; Vol. 58 Am. Jur. page 457, Section 817; Vol. 140 A. L. R. page 49 (citing Cincinnati Traction Co. v. Stephens, supra); Vol. 41 L. R. A. N. S. page 878; Jones on Evidence, 4th Edition, Vol. 3, page 1612, Section 869.
We find no misconduct on the part of the trial judge as claimed under appellant’s fifth assignment of error.
For his fourth and sixth assignments of error the appellant contends the court erred in overruling defendant’s motion for directed verdict at the close of plaintiff’s testimony and again at the close of all the testimony. When defendant elected to proceed to present his defense he waived his right to predicate error on the action of the court at the end of plaintiff’s case. Wilkinson v. Erskine & Son, 145 Oh St 218, 61 N. E. (2d) 201; In Re Estate of Robinson, 145 Oh St 55, 61, 60 N. E. (2d) 615; Halkias v. Wilkoff, 141 Oh St 139, 47 N. E. (2d) 199; Youngstown & S. Rd. Co. v. Faulk, 114 Oh St 572, 578, 151 N. E. 747; Vol. 39 O. Jur. page 872, Section 216.
The action of the court in overruling the defendant’s motion for directed verdict at the close of all the evidence, is properly challenged and will be considered, together with the eleventh assignment of error, that the verdict and judgment are against the manifest weight of the evidence, and are not sustained by sufficient evidence and are contrary to law, and the twelfth
We come now to consider the principal question in the case: Was the driver of defendant’s automobile acting as agent for defendant and within the scope of his employment at the time and place of collision?
The evidence when construed most favorably to plaintiff shows that the driver of defendant’s automobile was employed as a salesman by the defendant on a fixed salary to sell automobiles for the defendant at his place of business in the City of Miamisburg; that his working hours were from nine A. M. until five-thirty P. MÍ; that he resided in Cincinnati, Ohio; that the salesman did not own an automobile, but that it was his purpose to purchase a new automobile from defendant; that he planned later to move his residence to Miamisburg; that the defendant granted permission to the salesman to use a used automobile owned by the defendant to drive to his residence in the evening and return to his place of employment in the morning; that the salesman had a choice to use or not to use an automobile for such transportation and if an automobile were used he had a choice of which automobile to use; that the automobile used at the time of collision was equipped with dealer license plates of the defendant; that the salesman at times purchased gasoline for the automobile so used for which he was not reimbursed; that the salesman had other means of transportation to and from his place of employment by the use of a bus line; that
It will be observed that the collision occurred at eight thirty A. M. and that the salesman’s duties did not begin until nine A. M. at the defendant’s place of business.
Was the salesman acting under the direction or control of defendant at the time of collision? Was the salesman acting in the discharge of his duties as salesman at the time? Was the salesman engaged at the time in the prosecution of the defendant’s business? The latest expression of our Supreme Court on this question is Rogers v. Allis-Chalmers Mfg. Co., 153 Oh St 513, 92 N. E. (2d) 677, in which the Court, on page 526 said:
“In order to obligate a master to respond in damages for the negligence of a servant it is necessary not only that the servant be acting within the scope of his employment but the master must have the power of control and direction over the conduct of the servant.” '
In the instant case the facts do not meet the test. There is no evidence whatever that the defendant had “the power of control and direction” over the salesman while the salesman was driving from his residence to his place of employment. The controlling rule is simply stated but the difficulty always lies in its application. In The Lima Railway Co. v. Little, 67 Oh St, 91, 65 N. E. 861, it was held that the test of the master’s liability is “whether such act was done by the servant while engaged in the service of, and while acting for the master, in the prosecution of the master’s business.” In Nagy v. Kangasser, 32 Oh Ap 527, 168 N. E. 517, it was held that the employee’s act must be a “part of actual duty connected with employment.” In that case the
“The mere permission of master for servant to use an automobile in going to and from his meals or his home does not render servant master’s ‘agent’ or render master liable for servant’s negligence while so doing.”
In Vol. 57 C. J. S. page 326, Section 574 b. the text is as follows:
“The facts that in perpetrating the injury complained of the servant, while acting for some purpose of his own, used facilities or instrumentalities supplied by the master and that the injury could not have been inflicted without such facilities or instrumentalities impose no liability on the master. The master is liable only when his facilities or instrumentalities are being used by the servant for the purpose of advancing the employer’s business or interests. This is true even though the facilities or instrumentalities causing the injury were used with the consent of the master or were maintained by the master entirely for the use of the servant, and it has been held that the fact that the facilities furnished were dangerous by reason of defects therein is immaterial.”
The only possible theory upon which this case could have been submitted to the jury would have been on the ground that a reasonable inference of agency arose from the fact that the evidence showed that the automobile being driven
“The situation differs radically from those cases where-the vehicle being operated is the ordinary automobile, which.Page 459may be in the possession of the driver under varying circumstances, none of which would constitute or tend to constitute him the agent of the owner. We have many cases where an automobile is operated without the owner’s consent, where the driver is out on a joy ride. We have cases where the driver is employed by the owner of the automobile, but his occupation does not include the operation of the automobile. We have cases where the automobile owned by the defendant is operated by the defendant’s authorized agent, but at the time of the accident is being used not for the principal’s business, but for some purpose in which the driver alone is interested.”
The following cases cited may be distinguished on the facts: Amstutz v. Prudential Life Insurance Co., 136 Oh St 404, 26 N. E. (2d) 454; E. S. Gahagen & Smith, 48 Oh Ap 290, 194 N. E. 26; Standard Motor Sales v. Miller, 39 Oh Ap 7, 164 N. E. 55; Rhude v. Koehl, 55 Abs 532; Bolatin-Drabkin Furniture Co. v. Batten, 18 Abs 113; Authorized Dealers, Inc. v. Alms & Doepke Co., 12 Abs 158. In Fink v. Industrial Commission, 25 Abs 21, the court found that the employee was serving the interest of the master as well as his own and that the master had the right to.control the actions of the employee.
An interrogatory was submitted to the jury which required it to state specifically what business of his employer the driver of the defendant’s automobile was engaged in at the time .the accident occurred, which was answered: “Transportation in the course of selling used cars for his employer.” The case of the appellee is not strengthened by this answer. In fact, the answer of the jury demonstrates a weakness in the case of the appellee as there is no evidence to support the answer or from which a reasonable inference may be drawn to that effect.
In our opinion any inference as to agency was so completely refuted by the uncontradicted evidence on the subject that reasonable minds could not differ on this matter; reasonable minds could only conclude that the salesman at the time and place of collision was not acting within the scope of his employment or in furtherance of his master’s business. The court should have sustained defendant’s motion for directed verdict and defendant’s motion for judgment non obstante veredicto.
If the court is incorrect in its judgment that the evidence on the question of agency was insufficient as a matter of law to submit the case to the jury, we have no hesitancy in concluding that on the basis of the whole record the verdict
For the seventh assignment of- error appellant contends the court erred in giving before argument special instruction No. 4 requested by the plaintiff. This instruction reads as follows: “I charge you as a matter of law that if Henry T. Fink at the time of the accident was doing something he was authorized to do, which may be fairly inferred or implied from the nature of his employment and the duties incident to it, he may be said to have been in the course of his employment. Or it may be stated in this way: Was Henry T. Fink, at the time of the accident, doing an act in furtherance of Elmer Lackner’s business, which he was expressly or impliedly authorized to do?” While we do not approve of the court giving a special instruction in the form of a question, we do not believe that the statement of the court in the form of a question constituted prejudicial error. The first part of the charge was proper. This charge in its entirety is approved in Weygandt’s Ohio Charges, Second Edition, Section 821 B.
Appellant for his eighth assignment of error claims the court erred in refusing to give special instruction before argument requested by the defendant, which reads as follows: “I charge you, as a matter of law, that to maintain an action for negligence, the negligence complained of must be the direct and proximate cause of the injuries inflicted. I further charge you that proximate cause in the law of negligence is such a cause as operates to produce particular consequences without the intervention of an independent, unforeseen cause, without which the injuries would not have occurred.” In our opinion this was a correct statement of the law. See Vol. 29 O. Jur. page 478, Section 64. In Baltimore and Ohio S. W. Ry. Co. v. Moloney, Admrx., 7 C. C. N. S. 437, a charge in the identical language was approved. Counsel for the appellee contends that the charge was properly refused since it did not attempt to define intervening cause and make the proper application. A special charge is not intended to cover every principle of or all the law of the case. Hunter v. Brumby, 131 Oh St 443, 3 N. E. (2d) 353; Makranczy v. Gelfand, Admr., 109 Oh St 325, 338, 142 N. E. 688; Swing v. Rose, 75 Oh St 355, 369, 79 N. E. 757; Curlis v. Brown, 9 Oh Ap 19, 22; see Vol. 39 O. Jur. page 1034, Section 315. In this charge the court only attempted to define proximate cause. Since the charge was a correct statement of the law the
We find no error committed in refusing to withdraw from the jury allegations contained in plaintiff’s petition regarding the speed of defendant’s automobile as claimed in his ninth assignment of error, since there was some evidence introduced from which a reasonable inference may be drawn. Whether the speed of defendant’s automobile was greater than was reasonable or proper under the circumstances was a question to be submitted to the jury. Swaboda v. Brown, 129 Oh St 512, 196 N. E. 274. There was no issue made on the last clear chance either in the pleadings or evidence and no charge given with reference thereto.
We find no prejudicial error in the general charge as claimed by appellant in his tenth assignment of error.
Counsel for the appellant for his fourteenth assignment of error claims that other errors of law occurred at the trial, but no other errors are pointed out or discussed by appellant in his brief, and the Court finds no other errors existing.
The Court finds that reversible error was committed in refusing to give special instruction before argument requested by defendant, and that the verdict and judgment are against, the manifest weight of the evidence. Such error standing alone would require the case to be remanded for new trial. But on the determinative issue of agency reversible error was also committed in overruling appellant’s motion for directed verdict at the close of all the testimony, and in overruling appellant’s motion for judgment non obstante veredicto. Such ■errors are based on a failure of proof on a vital issue in the case and as a matter of law the defendant was entitled to judgment in his favor. In such case the reviewing Court may enter the proper judgment. Accordingly, judgment is entered for defendant.