Opinion, per JOHNSON, J.

mony, 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

Opinion, per JOHNSON, J.

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

Opinion, per Johnson, J.

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,

Opinion, per JOHNSON, J.

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

Opinion, per JOHNSON, J.

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 ordinary 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