
    The Higbee Co. v. Jackson, etc.
    
      Negligence — Master and servant — Respondeat superior — Scope of employment — Employe violates instructions — Automobiles —• Infant or trespasser injured on truck — Liability of owner — Wanton and wilful negligence — Violation of statute or ordinance — Questions for jury — Negligence and proximate cause.
    
    1. Where an employe, to whom the owner has committed the operation of an auto-truck in the owner’s business, permits an infant to ride on the truck in violation of his instructions and the infant is injured by the wanton and wilful conduct of the employe, while in the course and in the scope of his employment, the owner is responsible.
    2. Where one is a trespasser on an auto-truck, which has been committed to an employe by the owner for operation in the owner’s business, and the trespasser is injured by the wanton and wilful conduct of the employe while in the course and within the scope of his employment and while aware of a perilous position of the trespasser, the owner is responsible.
    3. To constitute wanton negligence it is not necessary that there should be ill-will toward the person injured, but an entire absence of care for the safety of others, which exhibits indifference to consequences, establishes legal wantonness. Such a mental attitude distinguishes wrongs caused by wanton negligence from torts arising from mere negligence.
    
      4. The simple violation of a statute or ordinance does not of itself constitute wilful and wanton negligence. The question whether there was such negligence, and if so whether it was the proximate cause of injury in a particular case, is one of fact to be determined by the jury in the light of all of the facts and circumstances shown by the evidence under proper instructions.
    (No. 16388
    Decided February 24, 1920.)
    Certified by the Court of Appeals of Cuyahoga county.
    Walter Jackson, an infant, brought suit by his next friend against The Higbee Company, a corporation engaged in the business of general merchandising at Cleveland. The petition avers that the defendant owned and operated numerous automobiles for the delivery of its goods to its customers in the city of Cleveland and other cities and villages in Cuyahoga county; that on or about the 19th of September, 1916, about 7:30 P. M., one of its trucks in charge of a driver was being driven in a westerly direction on Euclid avenue in Cleveland, which at all of the times and places involved was much traveled by vehicular traffic; that as the truck passed the plaintiff and a companion, who were standing on the sidewalk, the driver recklessly permitted the boys to ride on the left-hand running board and cling to the side of the automobile as it ran along the street; that the driver of the automobile, while the said infant who was about 14 years old was on said running board, with full knowledge of the infant’s perilous and dangerous position wilfully, wantonly, recklessly, negligently, and in violation of the statutory law of Ohio and an ordinance of the city of Cleveland, ran said automobile from the right, or north, side of the avenue over the center line and on to and along the left, or south, side, and ran the same at an excessive and unlawful rate of speed, to-wit, forty-five miles and hour; and that while so running the machine the defendant, through its operator, ran it on to and against a wagon, which was then and had been proceeding in an easterly direction on the south side of the avenue, and jammed and injured plaintiff in a manner detailed in the petition, to his damage in the sum of $10,000. A copy of the ordinance of the city requiring vehicles to keep to the right side of the street, except when necessary to turn to the left when crossing or overtaking another vehicle, is attached to the petition.
    Defendant in its answer admits it is engaged in business in Cleveland and that it owned and operated automobiles for delivery of its merchandise, and denies the other allegations of the petition. It avers that plaintiff’s injuries were caused by his own negligence and carelessness.
    At the conclusion of the plaintiff’s evidence the trial court, on motion of the defendant, directed a verdict for the defendant. The judgment entered on this verdict was reversed by the court of appeals. That court included in its entry a statement that the judges finding that the judgment upon which they had agreed is in conflict with the judgment pronounced on the same question by the court of appeals of the eighth appellate district, in Goff-Kirby Coal Co. v. Slzufca, 9 Ohio App., 177, therefore certified the record of this case to this court for review and final determination.
    
      Messrs. Howell, Roberts & Duncan, for plaintiff in error.
    
      Mr. S. V. McMahon and Mr. F. W. Zimmerman, for defendant in error.
   Johnson, J.

Under the circumstances of this case was the injured infant entitled to invoke the rule respondeat superior ? The answer to this question disposes of the entire case.

The trial court having sustained the motion for a directed verdict at the close of plaintiff’s testimony, it is elementary that every material fact which plaintiff’s evidence tended to prove must be taken as proven. The essential facts shown are that the driver of the defendant’s truck, who was accompanied by a helper, was driving westerly in Euclid avenue about 7:30 in the evening. He had made his last delivery and in obedience to instructions from the company was then taking the truck by direct route to the garage to be stored for the night. At a crossing of the avenue, known as Quarry Track, plaintiff and a companion asked permission to ride, which the driver gave them. This was in violation of the driver’s express instructions. They got on the running board, the plaintiff standing near the driver, on the left side, holding on to the wind-shield and seat. While in this position the driver increased the speed of the truck to some thirty-five miles an hour. He overtook a touring car ahead of him, which had passed him a short time before, going in the same direction. Without slacking his speed he turned his truck on to the wrong side, the'south side, of the road, directly in the course of and meeting a horse and wagon, which was being driven easterly. The horse and wagon were rightfully and properly near the curb on the south side. The truck struck and crushed the wagon, caught and jammed the boy and seriously injured him. The speed of the truck and its position on the street are conceded to have been in violation of statute and of an ordinance of the city.

The doctrine respondeat superior had its origin in considerations of public policy. Out of the necessities of new social and economic conditions it has been developed and extended; and its growth and application have been influenced and directed by these conditions. The rule itself, and its development, is an example of the process by which the judgment of society as to what is necessary to the public welfare has from time to time been expressed in juristic forms. In the early times some authorities expressed doubt as to whether it could be invoked against corporations, and for a long time its proper application in cases of wilful, malicious or wanton injury was denied. But in the presence of the requirements of the countless activities and changed methods in modern enterprises these limitations are no longer asserted and have not been for many years.

It is a fundamental principle that in order to create a liability in a principal for the acts of an agent, the acts complained of must have been committed while the servant was acting within the scope of his employment. It must be shown, first, that the agent was at the time engaged in serving his principal; second, that the act complained of was within the scope of the agent’s employment; and even if this is shown it must also appear that the agent in doing the act complained of violated some duty that the defendant owed to the plaintiff at the time. The law holds the master for what the servant does or omits in conducting the master’s business, because the master has voluntarily substituted the management and supervision of the servant for his own. For the purpose of this hearing plaintiff in error concedes that the driver of its truck, while taking it to the garage in obedience to instructions, violated the statute and the ordinance of the city in the manner set forth; that his conduct was wilful and wanton and was the cause of the collision with the horse and wagon. But plaintiff in error contends that when the driver gave permission to the boys to ride on the truck he stepped outside the scope of his employment and completely severed the relationship of principal and agent so far as the plaintiff is concerned, and that anything he did thereafter, so far as the plaintiff is concerned, would in no way create a liability upon the principal, though the acts were negligent or wilful.

No defense is made for the conduct of the driver in connection with the entire matter. But the company contends that in granting permission to the boys to ride he had no authority to do so. That is conceded. The grant of permission, so far as the company is concerned, was a mere nullity. The violation by the driver of his instructions in this respect affected the right of the plaintiff to be upon the truck. The most that can be said is that he had no such right, and that when he got upon the truck he was a trespasser, so far as the defendant company was concerned. But if it be conceded that he was on the truck as a trespasser, it must also be conceded that he was entitled to the rights of a trespasser. After that situation was created, and while it existed, if the driver with full knowledge of it, acting in the course of his employment and within the scope of his employment, was guilty of wilful and wanton conduct, which was the proximate cause of injury to the plaintiff, the defendant is liable.

Now, were the wilful and wanton acts of the driver done within the course of his employment and within the scope thereof? Let us test it with reference to the owner of the horse and wagon. The driver taking the truck over the direct route to the garage in obedience to instructions runs it in violation of the statute and of the ordinance and collides with and injures the horse and wagon, whose driver was without fault. We apprehend there would be no question that the company would be liable to the owner of the horse and wagon. Why? Because the driver while in the scope of his employment violated a duty which the company owed to the owner of the wagon, that is, the duty to exercise ordinary care to avoid injuring his property. No one would say that the fact that the company had instructed the driver to exercise ordinary care and not to operate the truck in violation of law (if it had done so) would relieve it of liability. Such a view would nullify the rule respondeat superior. So here, while the plaintiff is upon the truck as a trespasser, with the rights of a trespasser, the same wanton and wilful conduct, the same violation of the statute and the ordinance, is the proximate cause of his injury. The difference between the. two is that in the case of the owner of the wagon the defendant had the affirmative duty to exercise ordinary care to avoid injury to him and his property; while as to the plaintiff trespasser the defendant had the negative duty not to injure him by its wanton and wilful conduct.

In The Cleveland Terminal & Valley Rd. Co. v. Marsh, 63 Ohio St., 236, it is said at page 245: “A trespasser who is upon the company’s premises wrongfully, and a mere volunteer, stand upon substantially the same footing, and are entitled to recover only for such negligence as occurs after the servants of the company discover their perilous, situation, that is for wilful or intentional injury.”

In The B. & O. S. W. Ry. Co. v. Cox, Admx., 66 Ohio St., 276, it is held in the syllabus: “An action to recover for an injury occasioned by negligence, the element of wilfulness being absent, will not lie unless there exists between the defendant and the person injured a relation out of which there arises a duty of the former to exercise care toward the latter.” These and other Ohio cases are merely the statement of a rule everywhere approved. See Powers v. Harlow, 53 Mich., 507, per Judge Cooley.

Quite a number of authorities are cited by the plaintiff in error in which recovery was denied, but an examination of them discloses that none of them rested the claim of liability on the wilful and wanton conduct of the defendant. The plaintiff’s claim in each case rested on the failure to exercise ordinarj'- care.

In Driscoll v. Scanlon, 165 Mass., 348, much relied on, the driver invited the boy on the wagon and allowed the boy to drive while he himself went to sleep. In managing the lines the boy lost his balance and fell under the wagon. No act of the driver brought about the fall of the boy.

In Schulwitz v. Delta Lumber Co., 126 Mich., 559, the boy got on the wagon of defendant after it was unloaded and held on to an upright pole. As the wagon passed over rough places the pole was jogged out of its socket and plaintiff fell from the wagon. Recovery was sought because of the negligence of the teamster in permitting the boy to ride, but no wilful or wanton act of the driver brought about the injury.

In Collins v. City of Chicago et al., 187 Ill. App., 30, plaintiff was permitted by the driver to ride on the rear step of defendant’s ice wagon, following which was another horse and ice wagon of the company. Collins was thrown from the wagon because of a jar on one of the wheels and was injured by the second wTagon. He based his action on negligence. The second proposition of the syllabus reads: “Where a person injured while riding on a wagon is a trespasser, the owner of the vehicle owes no duty to him other than to not injure him wantonly or wilfully.”

In Foster-Herbert Cut Stone Co. v. Pugh, 115 Tenn., 688 (91 S. W. Rep., 199), also much relied on, the plaintiff, with other boys, boarded the stone wagon on the invitation of the driver. The court say: “After riding a short distance they began one after another to dismount, and in undertaking to do likewise the deceased either fell or jumped to the ground between the wheels.”' The action was one for negligence. It will be noted that no act of the driver caused the injury. It must be remembered that this is not a suit for lack of ordinary care, but is based on wanton and wilful acts which caused the injury.

No case has been called to our attention which holds that the mere giving of unauthorized permission by a driver to an infant relieved the employer from liability for wilful and reckless acts of the employe, which were done in the course and scope of his employment, and which were the proximate cause of injury.

In Chicago, Milwaukee & St. Paul Ry. Co. v. West. 125 Ill., 320, it is held in the syllabus: “But where the engineer invites a boy of the age of seven years to ride on his engine, without authority, or in violation of his duty, and then directs the boy to get off while the engine is in motion, and the latter is injured in getting off, the company will be liable for the injury. It is negligent conduct in the engineer to direct a child of that age to -get off while the engine is in motion, for which the company is liable in case of a personal injury caused thereby.”

In Enright v. Pittsburg Junction Rd. Co., 198 Pa. St., 166, it is held: “A child of tender years, who while trespassing on a freight train is frightened by the shouts and threatening action of a brakeman, while in the discharge of his duties, so that he jumps from the train while it is in rapid motion, and is injured, may recover damages from the railroad company for the injuries sustained.” The court say, at page 170: “The boy was not injured by reason of the dangerous position in which he placed himself, but because of the careless and reckless act of the brakeman in causing him to alight while the train was in motion. The cause of the boy’s injury, therefore, is directly attributable to the negligent act of the defendant’s employee in frightening him so that he attempted to quit the train in the face of imminent danger.” The court say further, at page 169: “If the position assumed by the court and urged by the appellee’s counsel be correct, then a railroad company owes no duty whatever to a person of any age who enters upon one of its trains as a trespasser. The company under such circumstances may with impunity at any time eject a person from a train at the peril of' life and limb. * * * The child of tender years, whose discretion cannot protect him, as in this case, who has entered its train with the knowledge and without 'objection of the brakeman, may be cast from the train with impunity while its rapid speed insures the greatest danger. * * * We cannot assent to a doctrine fraught with so much danger to the public and with so little regard for the rights of the individual.” See also Lovejoy v. D. & R. G. Rd. Co., 59 Col., 222; Euting v. C. & N. W. Ry. Co., 116 Wis., 13; Nudelman v. Borden’s Condensed Milk Co., 136 N. Y. Supp., 49; G., H. & S. A. Ry. Co. v. Zantzinger et al., 93 Tex., 64, and Bucci v. Waterman, 25 R. I., 125.

In certifying this case to this court the court of appeals states in its entry that it finds the judgment is in conflict with the judgment of the court of appeals of the eighth appellate district in the case of The Goff-Kirby Coal Co. v. Skufca (9 Ohio App., 177). After the judgment in the Skufca case in the court of appeals, a motion was filed in this court to require the cause to be certified here for final determination, on the ground that it was a case of public and great general interest. That motion was overruled.

While the reason of the overruling of the motion does not appear, the entry of the court of appeals in that case shows that that court reversed the judgment in favor of the plaintiff in the trial court “because it is contrary to law and against the weight of the evidence.”

In resisting the motion counsel for defendant in that case invoked the application of Rule XIX of this court, which provides that in cases in which the judgment of the court of appeals reverses the judgment of the court of common-pleas wholly or partly on the ground that such judgment is not sustained by sufficient evidence, a motion to affirm such judgment forthwith shall be entertained.

The record in that case also disclosed that in his charge the trial court instructed the jury as follows: “When a boy such as the plaintiff is found upon that wagon without the permission of the Company, a duty arises on the part of the Company, acting through its driver, to exercise ordinary care to allow him to alight safely from that wagon. * * * If you find that the driver knew Joseph Skufca was upon his wagon, then I say to you that when the driver is requested by the plaintiff to permit him to alight or get off the wagon, it is the diity of such driver, and such duty devolves upon the Company which he represents, to exercise ordinary care * * * to permit the boy to alight safely.”

The boy in that case was on the wagon by the invitation of the driver and had requested to be allowed to get off. The. driver paid no attention to him and in attempting to get off by himself the boy was injured.

After reciting that the boy was on the wagon by the unauthorized invitation of the driver, and that he was a trespasser, counsel for the company in that case say in their brief: “The defendant, on the other hand, maintained that under these circumstances the only legal duty it owed the plaintiff was to refrain from wilfully or purposely injuring him.” Defendant’s counsel in that case further say in their brief: “Counsel assume that this boy, while on the wagon, was in a place of danger. The opinion of the court of appeals shows conclusively that while upon the wagon he was in no danger whatever. His attempt to dismount from the wagon, before it could be brought to a stop, was the proximate cause of his injury, and was his own act, unknown to the driver of the wagon.”

Now, if it be conceded that in this case, as in that, the boy was a trespasser, it is clear that while upon the truck he was not in any danger whatever until the subsequent wanton and wilful acts of the driver created the danger and injured him.

The authorities are uniform in holding that to constitute wilful or wanton negligence it is not necessary to show ill-will toward the person injured, but an entire absence of care for the life, person or property of others which exhibits indifference to consequences makes a case of constructive or legal wilfulness. A complete indifference to consequences distinguishes wrongs caused by wantonness and recklessness from torts arising from negligence. Many cases sustain this general proposition, among which are Heidenreich v. Bremner, Jr., et al., 260 Ill., 439; Bolin v. C., St. P., M. & O. Ry. Co., 108 Wis., 333; L., N. A. & C. Ry. Co. v. Bryan, 107 Ind., 51, and Freeman v. United Fruit Co., 223 Mass., 300.

In Aiken v. Holyoke Street Ry. Co., 184 Mass., 269, an infant got upon the lower step of the forward end of a street car and was in that position when the car was going around the curve from one street to another. The child did not intend to become a passenger. He was stealing a ride and was a mere trespasser. He called to the motorman to let him off. The motorman saw and heard him, but turned on the power in a reckless fashion and threw the plaintiff from the car. In holding the company liable the court say, at page 271: “The law is regardful of human life and personal safety, and if one is grossly and wantonly reckless in exposing others to danger, it holds him to have intended the natural consequences of his act, and treats him as guilty of a wilful and intentional wrong.”

It is different when goods are carried by the servant without authority. There is no rule imposing duty on the employer in that case. In this case there is the personal relation, and the wilful and wanton conduct of the driver was the proximate cause of the injury. It is well settled that the question as to what is a proximate cause is to be answered by ascertaining the direct, active, efficient cause, as distinguished from a remote cause, in producing the result.

The unauthorized consent to ride was given more than half a mile from the scene of injury. It was a mere incident and had nothing to do with the collision. Otherwise no trespasser could recover under any circumstances at any place. A different view leads to illogical and intolerable conclusions — that is to say, the lack of authority in the driver to consent makes the child a trespasser, though he may not have known of such lack, and we then change to the other edge of the sword and cut off even the rights of a trespasser because of the consent.

By that process the child has less right when he asks permission to ride than if he heedlessfy jumps on without permission. Such a rule would put a premium on fraud. A driver who had wantonly injured a child could assert that he had in violation of his authority and his instructions invited the child to ride, and in such case the law would leave the unsuspecting child to the mercy of the wanton and unlawful conduct of the driver.

As said in 18 Ruling Case Law, 798, “If the servant’s disobedience of instructions will exonerate the master, the proof, easily made, virtually does away with the maxim of respondeat superior, designed for the protection of innocent third persons, and obliging the principal to be careful in the employment of agents, to whom he entrusts the means of committing an injury.”

An automobile cannot be said to be a dangerous instrumentality when properly and carefully operated. But it is designed for use in busy thoroughfares and congested districts, and when operated recklessly it is dangerous and destructive. This fact is pressed upon the common knowledge ■ by constant observation and experience. Legislatures and courts have it steadily called to their attention.

When an employer places such an instrumentality in the possession and control of an employe in the conduct of his business, and voluntarily substitutes the management and supervision of the employe for his own, the law holds him for what the employe does while using the instrumentality in the course and scope of his employment. Qui facit per alium, facit per se. This is the rationale of the doctrine respondeat superior. And we hold in this case that when the young boy clinging to the running board of the truck in a precarious position, of which the driver had knowledge, was injured by the wanton and reckless acts of the driver, while in the course and scope of his employment, the employer is liable.

The simple violation of a statute or ordinance does not of itself constitute wilful and wanton negligence. The question whether there was such negligence, and, if so, whether it was the proximate cause of injury in a particular case, is one to be determined by the jury in the light of all the facts and circumstances shown by the evidence. But as already stated, in the consideration of the action of the trial court in sustaining the motion of the defendant for a directed verdict at the close of the plaintiff’s evidence, all of the facts which the plaintiff’s evidence tended to prove must be taken as established. The motion for a directed verdict should have been overruled, and the cause submitted to the jury, after opportunity given the defendant to introduce his testimony.

' The judgment will be affirmed.

Judgment affirmed.

Nici-iols, C. J., Matthias, Robinson and Merrell, JJ., concur.

Wanamaker, J.,

concurring. I heartily approve the judgment, but I as heartily disapprove some of the grounds of the judgment.

The second paragraph of the syllabus reads:

“Where one is a trespasser on an auto-truck, which has been committed to an employe by the owner for operation in the owner’s business, and the trespasser is injured by the wanton and wilful conduct of the employe while in the course and within the scope of his employment and while aware of a perilous position of the trespasser, the owner is responsible.”

The controlling facts upon which this paragraph of the syllabus is based appear in. the opinion as follows:

“The essential facts shown are that the driver of the defendant’s truck, who was accompanied by a helper, was driving westerly in Euclid avenue about 7:30 in the evening. He had made his last delivery and -in obedience to instructions from the company was then taking the truck by direct route to the garage to be. stored for the night. ’At a crossing of the avenue, known as Quarry Track, plaintiff and a companion asked permission to ride, which the driver gave them. This was in violation of the driver’s express instructions. They got on the running board, the plaintiff standing near the driver, on the left side, holding on to the windshield and seat. While in this position the driver increased the speed of the truck to some thirty-five miles an hour. He overtook a touring car ahead of him, which had passed him a short time before, going in the same direction. Without slacking his speed he turned his truck'on to the wrong side, the south side, of the road, directly in the course of and meeting a horse and wagon, which was being driven easterly. The horse and wagon were rightfully and properly near the curb on the south side. The truck struck and crushed the wagon, caught and jammed the boy and seriously injured him. The speed of the truck and its position on the street are conceded to have been in violation of statute and of an ordinance of the city.”

The material part of this quotation is the following:

“At a crossing of the avenue, known as Quarry Track, plaintiff and a companion asked permission to ride, which the driver gave them. This was in violation of the driver’s express instructions.”

This fourteen-year-old boy was gentleman enough to ask permission to ride upon the auto-truck. The driver gave him that permission. The driver was prima facie the owner of the auto-truck, and the boy 'had a perfect right to rely upon that presumption, or at least to rely upon the fact that the driver had authority to give him that permission; after which the boy came upon the truck.

The opinion admits that “the speed of the truck and its position on the street are conceded to have been in violation of statuté and of an ordinance of the city.”

The opinion also concedes that the careless and negligent operation of the truck was the proximate cause of the injury to the boy.

In the name of humanity and justice, I vigorously dissent from any doctrine announced by any court which defines such a state of facts as a trespass upon the part of this boy.

When The Higbee Company placed this auto-truck in charge of its driver it conclusively made the driver its agent, not only in the use but in the abuse of the “right to public safety” on the part of the traveling public either on or off the truck. This boy was upon this truck, not only by permission, but by invitation; true, at his own suggestion, but none the less an invitation. He was in no sense either legally, justically, or humanely a trespasser. Such a construction harks back to the barbarities of mediseval jurisprudence.

Jones, J.,

dissenting. I dissent from this judgment. In doing so I feel warranted in saying that the judgment is supported neither by sound legal reason, nor by judicial authority in other states, where similar facts are involved. Since this decisión was announced the New York court of appeals, in two separate cases, recently published, has denied liability in cases of this character. I refer to Goldberg v. Borden’s Condensed Milk Co., 227 N. Y., 465, 125 N. E. Rep., 807, and Rolfe v. Hewitt, 227 N. Y., 486, 125 N. E. Rep., 804.

In the Goldberg case the syllabus reads: “Where a driver, acting contrary to express orders, invites a boy to ride on his wagon, which is started so suddenly that the boy is thrown off and injured, the employer is not liable for the injuries.” There the driver of a milk wagon had invited a boy eleven years of age to ride with him. While the boy was getting upon the wagon the driver whipped up his horses so suddenly that the boy was thrown to the ground. As a predicate for his holding, McLaughlin, J., said: “Huber [the driver] had no authority to invite the plaintiff to ride; in fact he was acting contrary to express orders of his employer. When he gave the invitation he did an act outside the 'scope of his employment, and the defendant was not responsible for the injuries caused by the driver’s negligence while plaintiff was thus riding.”

In the Rolfe case, also decided last month by the same court of appeals, it was held in the syllabus: “Where deceased was invited to ride in defendant’s automobile by the chauffeur, not on defendant’s business, and contrary to his orders, defendant is not liable for his death, though caused by the chauffeur’s negligence.’’’ However, these New York decisions merely sustain the principle announced by other courts in this country, which are cited later in this opinion.

In this case the facts are without dispute. The Higbee Company was engaged in the business of conducting a retail store for the sale of merchandise. Komko was its employe, operating an automobile truck and delivering merchandise. Komko had finished making his last delivery, and while driving the truck homeward to the garage of The Higbee Company, the plaintiff and two other boys asked Komko to let them ride a part of the way. The employe told them to get on. In this he violated the instructions of his employer. Plaintiff boarded the running board of the truck.

The legal principle is well settled that an employer is not liable for the tortious act of his servant: (a)unless the servant or employe was engaged at the time in serving his employer, or, stated in other words, unless the act was done in the execution of the service for which he was employed; (b) and if thus engaged, the act must be within the scope of the servant’s employment. In this state this rule of liability has been often stated and maintained. The Little Miami Rd. Co. v. Wetmore, 19 Ohio St., 110; The Lima Ry. Co. v. Little, 67 Ohio St, 91; The White Oak Coal Co. v. Rivoux, Admx., 88 Ohio St., 18, and Stranahan Bros. Catering Co. v. Coit, 55 Ohio St., 398.

The act of Komko in inviting the boys to ride on his way homeward may have been done in the course of his employment. But that is not sufficient. In order to hold his employer liable, within the principle stated, the invitation as well must have been within the scope of his employment. The sole question for judicial consideration therefore is, was the act of Komko in inviting the boys to ride on his automobile truck within the usual scope of his employment?

Had this case been one wherein Komko, on this occasion, had invited another to place his goods in the automobile truck for the latter’s convenience, and the goods had been damaged by the negligent act of the driver, upon what principle could the employer be held liable to the owner of the damaged goods? Or, let us assume another case. A orders his chauffeur to bring his automobile to his office, and while pursuing that engagement the chauffeur loads the vehicle for the convenience of the occupants. In case of injury to the occupants by the negligent acts of the chauffeur would the owner of the automobile be held liable? In the one case the chauffeur was employed solely to go after the employer, while, in this, The Higbee Company’s authority extended only to the hauling and delivery of merchandise. In neither casé did the authority of the employer extend or apprehend the use of the vehicle for the conveyance of passengers. The rule is well stated by Judge Cooley:

“And it will readily occur to' every mind that the master cannot, in reason, be held responsible generally for whatever wrongful conduct the servant may be guilty of. A liability so extensive would make him guarantor of the servant’s good conduct, and would put him under a responsibility which prudent men would hesitate to assume, except under the stress of necessity. Even the parent is not made chargeable generally for the torts of his child; and if he cannot justly be held responsible for the conduct of one whom the law submits to his general direction and discipline, much less could another be held liable, generally, for the acts of a servant over whom his control is comparatively slight, and who is not submitted to his disciplinary authority.” 2 Cooley on Torts (3 ed.), page 1016, Section 625.

To the same effect is the following from 2 Mechem on Agency (2 ed.), Section 1880:

“Not every act which an agent or servant may do while he is in the place appointed for the service, or during the time in which he is engaged in the performance, can be deemed to be within the course of the employment, or within the scope of the authority. The test lies deeper than that; it adheres in the relation which the act done bears to the employment. The act cannot be deemed to be within the course of the employment, unless, upon looking at it, it can fairly be said to be a natural, not disconnected and not extraordinary part or incident of the service contemplated.”

It is intimated in the majority opinion that the rule is different when goods are being carried by the servant without authority. I confess my inability to follow this distinction. In this particular case, had the driver asked one who was upon the sidewalk with a basket of eggs to ride upon this occasion, if the legal duty of care should be conceded, I fail to see why the person invited should be permitted to recover, and damages denied for the loss of his eggs or injury to his clothing. If this action had been brought against Komko, the driver, or if the element of invitation were not involved, or the driver had negligently injured the infant upon the streets of the city, a different principle would apply, entailing liability, upon the part of the employer. However, in this case the authorities are in practical unanimity in holding the employer free from liability. The reason given is that the act of inviting others upon a vehicle of this character is entirely without the scope of the agent’s authority, and in none of the cases does the liability of the principal hinge upon the degree of negligence used by his employe. The following cases, among many others, support the principle here indicated: Driscoll v. Scanlon, 165 Mass., 348; Schulwitz v. Delta Lumber Co., 126 Mich., 559; Dover, Admr., v. Mayes Manufacturing Co., 157 N. C, 324; Kiernan v. New Jersey Ice Co., 74 N. J. L., 175; Scott v. Peabody Coal Co., 153 Ill. App., 103; Hoar, Admx., v. Maine Central Rd. Co., 70 Me., 65; Bowler v. O’Connell et al., 162 Mass., 319, and Foster-Herbert Cut Stone Co. v. Pugh, 115 Tenn., 688.

The syllabus in the North Carolina case, supra, is as follows: “One who is employed to drive a team of mules to a wagon for the ordinary purposes of hauling has no implied authority from the master to permit boys to ride on the wagon, as such is not within the scope of the servant’s employment.”

In the Illinois case, supra, the court holds in its syllabus: “If a servant.employed by a master in the driving of a coal wagon has been instructed not to permit boys to ride with him on such wagon and he violates such instructions and the boy riding upon such wagon is injured, the master is not liable.”

In the Michigan case, supra, the following is held in the syllabus: “A master is not liable for the negligence of his servant in permitting a boy, contrary to the master’s orders, to ride upon a wagon provided for the servant’s use in hauling lumber, such act not being within the scope of the servant’s employment.”

It would appear from the opinion of the court of appeals in the case at bar that its judgment rested upon the theory that although the invitation extended to the boys may have been without the scope of authority, still, the employe having exceeded his authority, the infant could then have been regarded as a trespasser to whom the employer owed a duty of not injuring him by wanton negligence upon the part of the employe. This feature of the case begs the entire question and eliminates from the case one cardinal element which is necessary to impose liability upon the employer. This elementary principle is that the act of the employe must be within the scope of his employment. If the theory of the court of appeals were correct it could as well be said that a liability would likewise accrue if Komko had departed from his course of employment and driven the boys to the city lake front for their own convenience and injured them on the way.

The fallacy lies in considering the negligent driving of the employe solely as the causal act pro-during the injury. The act of driving was within the scope of Komko’s employment, it is true. But it was the unauthorized act — that of giving an invitation to the boys to ride — which was without the scope of Komko’s employment. The record discloses,. and it is not disputed, that this employe had been given explicit instructions not to let any one ride on the truck. The unauthorized act of invitation produced the train of events that followed, and the reckless driving was consequential. In the case of Driscoll v. Scanlon, supra, the same theory of liability was argued and presented as in this case. The teamster had invited a boy to ride with him upon a dump-cart. The teamster asked the infant to take the reins, while he fell asleep. It was there argued that the court might look only to the later moment, when the plaintiff was under the wheels, and not to the unauthorized act of the teamster in inviting him to drive, but Judge Holmes, of the Massachusetts court, disposed of that contention by saying in his opinion: “The driver’s slumber was so intimately connected with the unauthorized act that it is impossible to separate the two. The driver would not have been asleep and the plaintiff would not have fallen but for the driver’s unauthorized act, and if the plaintiff had not been driving.” The following is the syllabus in that case: “If a driver of a cart invites an infant to drive with him, either for pleasure or to take his place in driving while he sleeps, and the infant falls from the cart and is run over by it, the act is outside the driver’s authority and his master is not liable to the infant.”

The rule of liability announced in the syllabus was condemned in the case of Kiernan v. Ice Co., supra. There an employe, Lahey, gave permission to an infant to take a piece of ice from his wagon, and while the infant was in the act of taking the piece of ice the servant assaulted him. In the course of his opinion the judge said, page 177: “The only way by which the defendant could be held liable for the injury in the present instance is upon the theory that the invitation by Lahey is to be entirely disregarded in the transaction. In other words, the theory is this: That Lahey,' having no authority to extend to the plaintiff a license to take the ice, therefore when the latter got upon the steps of the wagon he stood as any other trespasser.” But the court disposing of that theory said: “The question is whether it was within the scope of his authority to create the condition which he was authorized to prevent, and then to represent the company in abolishing those conditions ? It is apparent that, according to' the plaintiff’s testimony, there would have been no trespass had there been no invitation. The plaintiff was doing the very act which Lahey had licensed him to do, and nothing more.”

That the rule of principal and agent is involved in this case is recognized by the syllabus which establishes liability for “conduct of the employe while in the course and within the scope of his employment.” However, the syllabus begs the entire question when it declares that here the wanton conduct of the employe was done within the scope of his employment. If the acts of the employe were “in the course and within the scope of his employment,” then his principal would be liable whether his acts constituted wanton or “mere” negligence. This principle is elementary. In The Nelson Business College Co. v. Lloyd, 60 Ohio St., 448, Minshall, J., at page 454, says that it is “clearly settled that the master is liable for the willful, or even malicious, as well as negligent acts of a servant, done in the course of his ¿mployment and within the scope of his authority.” And in Stranahan Co. v. Coit, 55 Ohio St., 413, Spear, J., said: “One principle seems to be well settled by the later authorities, viz: That if the act of the servant which has occasioned the mischief is within the scope of the employment, the fact that it was maliciously done does not affect the question of the master’s liability under a proper rule of damages.” And in Lima Railway Co. v. Little, 67 Ohio St., 100, the judge in the course of his opinion said that the test of the master’s liability was whether the act of the servant was done while in the service of and acting for the master in the prosecution of his business, and that such was the rule “whether the act complained of be wanton and willful or whether it be merely negligent on the part of the servant or employe.”

The measure of the principal’s liability for the negligence of his employe, whether wanton or ordinary, is not based upon the degree of negligence upon the part of the employe, but upon the fact whether his conduct was within the scope of his authority. The plaintiff was not a trespasser. He got upon the wagon with the consent of the driver. He was not a licensee of the. master, but was a licensee of the agent only. Rolfe v. Hewitt, supra.

I now advert to some of the cases cited in the majority opinion, and do so only because the principles there decided are readily distinguishable from those in other cases decided by the courts of the same states which deny liability under the facts involved here. In Enright v. Pittsburg Junction Rd. Co., 198 Pa. St., 166, the element of invitation by the employe was not involved. In that case the court cited the earlier case of Flower et al. v. Pennsylvania Rd. Co., 69 Pa. St., 210, which denied liability where a boy was invited to ride. Neither was the element of invitation involved in the cited case of Powers v. Harlow, 53 Mich., 507. But the principle here involved was decided in the later Michigan case, Schulwitz v. Delta Lumber Co., supra. That the courts of Illinois recognize that the cited case of C., M. & St. P. Ry. Co. v. West, 125 Ill., 320, did not apply to facts such as we have in the case at bar, is shown by the decision of the appellate court of that state twenty-two years later, in Scott v. Peabody Coal Co., 153 Ill. App., 103, where the syllabus is as follows: “If a servant employed by a master in the driving of a coal wagon has been instructed not to permit boys to ride with him on such wagon and he violates such instructions and the boy riding upon such wagon is injured, the master is not liable.”

In Aiken v. Holyoke Street Railway Co., 184 Mass., 269, the question of the employe’s invitation was neither presented nor discussed. But following its earlier decisions upon the same questions, the supreme judicial court of Massachusetts in Walker v. Fuller, 223 Mass., 566, denied recovery where the element of invitation was present.

This case was certified to this court by the court of appeals of the sixth district, sitting by designation in Cuyahoga county, in the eighth appellate district. In certifying this case to this court the sixth appellate district declared and found in its journal entry that its judgment was in direct conflict with the judgment pronounced upon the same question by the court of appeals of the eighth appellate district in the case of Goff-Kirby Coal Co. v. Skufca (9 Ohio App., 177), decided by the latter court on May 7, 1917. That a conflict exists is beyond doubt, and it resulted from the decision of two separate courts of appeals sitting in Cuyahoga county upon substantially the same state of facts. In this case the liability of the employer was upheld, but in the Skufca case this liability was denied. By his motion, No. 9579 in this court, Skufca, the injured party, asked for certification of the record in that case to this court. His appeal was denied. Whether it was because his case was not one of great general interest, or that no error intervened, does not appear, but he was denied relief. Why he was denied is. now immaterial, since in Cuyahoga county we have this situation: Upon substantially the same state of facts, and in the same county, one infant plaintiff is allowed to recover, and damages denied to the other. In the case of Goff-Kirby Coal Co. v. Skufca, supra, the facts were as follows: Skufca, a boy of nine years of age, and four or five other boys, returning from school, were invited to ride by the driver of a coal wagon owned by the coal company. The boy requested the driver to permit him to alight from the wagon, but the request was refused. In attempting to alight from the wagon, and in consequence of the negligent conduct of the driver, which the plaintiff claimed was reckless and wilful, the boy was injured. In the common pleas court the boy, Skufca, recovered a judgment, which the court of appeals reversed, although wilful negligence was urged in the case, because the act of the driver was not within the scope of his employment. Certification of the case was refused by this court.  