
    MALLOY v. SVOBODA.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7995.
    Decided Mar. 5, 1928.
    Syllabus by Editorial Staff.
    751. MASTER AND SERVANT — 54. Agency.
    Where friend, who is riding with truck driver, performs act which is within scope of driver’s duty, such act is the act of the driver.
    Error to Common Pleas.
    Judgment reversed.
    Bernsteen- & Bernsteen, Cleveland, for Mal-loy.
    Payer, Minshall, Karch & Kerr, Cleveland, for Svoboda.
    STATEMENT OF FACTS.
    This case comes into this court on a petition in error to the Common Pleas Court of Cuya-hoga County, the purpose being to reverse a judgment that was rendered against plaintiff in error, who was plaintiff below, in the Common Pleas Court of this County.
    It seems that the plaintiff in error was a boy and at the time complained of was standing on the sidewalk at West 50th Street and Clark Avenue, but for just what purpose he was there does not appear, and it makes no difference. He was rightfully on the street.
    The record shows that the defendant in error was the owner of The American Bohemian Daily and that it delivered its paper in bundles to various places in the City of Cleveland, and for that purpose employed a person who drove a truck belonging to the defendant in error containing the newspapers done up in large bundles to be distributed at different points in the City to be there received by the distributing agents for the purpose of distribution among the subscribers to this Bohemian Daily.
    The evidence shows that, on this particular day, the truck belonging to the defendant in error was driven by its servant for the purpose of distribution, and that it was the custom to drive up to the curb and throw the papers upon the sidewalk.
    It further appears from the record that a couple of boys, who apparently were friends of the driver who was a youth, were in the truck with him, and as they approached West 50th Street on Clark Avenue where a bundle of the papers was to be delivered (the papers were evidently marked for this particular location), the driver, without stopping, drove up close to the curb, and it is said that one of these boys, either with the driver’s instructions, or of his own volition, pushed this bundle of papers off, and-it knocked this boy down, broke his leg and injured him so that he is permanently disabled, by reason of which this action was brought.
    When this case was presented to the court and the plaintiff had introduced his evidence, there did not seem to be any evidence to show that the driver of this truck, the employee of the defendant in error, was authorized to have boys ride with him, and that inasmuch as one of these boys apparently shoved this bundle of papers on to the sidewalk, although this is disputed, that the doctrine of respondent superior would not apply, and on motion a verdict was directed for the defendant in error against the plaintiff in error, and it is to re'verse that judgment that error is prosecuted here.
   VICKERY, J.

I cannot agree with learned counsel that it was necessary to prove that this employee of the defendant in error had authority to employ some one else. In the first place, as I get this case, there was no employment of anybody else. This driver had a duty to perform, and that was to deliver these papers at this corner, and the truck was used for that purpose, and if this bundle had been put in the window of the automobile so as to make ready to do that, it must have been with the connivance and under the instructions of the driver. If he had taken a stick and pushed the bundle out, or kicked it out on the sidewalk, there would be no question but what there would be a liability. Now the mere fact that he used instead of a stick to throw it off, the aid of a boy who was riding with him, would not change it from being the act of the driver — for it must be remembered that it was the driver’s duty to deposit this bundle of papers at this particular place, so I say, that whatever act was done by one of these boys, if the act were done by one of them, was as a matter of fact the driver’s act, and that was simply the means or the medium through which the purpose was accomplished and the driver was acting within the scope of his employment and acting for the defendant in error when these papers were deposited there, and I think there is a question to go to the jury, whether or not there is not a liability, and the court erred in directing a verdict for the plaintiff.

Now we are not left to conjecture in this respect. There is a recent case, so on all fours with this case that there can be no misunderstanding of the trend of the court and that is the case of Semper v. American Press, 273 S. W. Reporter, page 186.

There could not be a ease more on all fours with the instant case than that case, but irrespective of that case, by an analogy of reasoning, it cannot be possible that an employer that wants to have papers delivered upon a street corner, if its agent, in order to get the thing done more quickly, gets a friend to go with him, and he being at the wheel and driving past the spot, orders the friend to throw these things off, which results in an injury to a person rightfully upon the sidewalk, can escape responsibility on the ground that the one who threw off the bundles of papers was a mere volunteer. It is the act all the time of the employee of the defendant company, in pursuance of his duties, and in no sense is it necessary to show that there was power to employ other persons, — in fact, there has been no employment of other persons. He did the work himself and the other person was only the means through which he did it — it was the instrument which he used, and consequently there was evidence at least to go to- the jury in this case.

The judgment of the court below was wrong because there was surely evidence to go to the jury, and I think it should be reversed and remanded to the trial court for a new trial.

(Levine_, J., concurs. Sullivan, P. J., not participating.)  