Dissenting Opinion, per JONES, J.

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 statute 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 autotruck 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 medieval 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 de

Dissenting Opinion, per JONES, J.

cision 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.

Dissenting Opinion, per JONES, J.

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

Dissenting Opinion, per JONES, J.

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 case 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

Dissenting Opinion, per JONES, J.

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 con- . ceded, 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