(128 N.E.) We on. No act of the driver brought about the fall of the boy. wagon, whose driver was without fault. 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 of respondeat superior. So here, while the plaintiff is upon the truck as a trespasser, with the rights of a trespasser, the same wanton and willful conduct, the same violation of the statute and the ordinance, is the proxiinate 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 willful conduct. In Cleve land Terminal & Valley Rd. Co. v. Marsh, 63 Ohio St. 236, at page 245, 58 N. E. 821, at page 824 (52 L. R. A. 142), it is said: "A trespasser who is upon the company's premises wrongfully, and a mere volunteer, stands 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 willful or intentional injury." In B. & O. S. W. Ry. Co. v. Cox, Adm'x, 66 Ohio St. 276, 64 N. E. 119, 90 Am. St. Rep. 583, it is held in the syllabus: "An action to recover for an injury occasioned by negligence, the element of willfulness 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, 19 N. W. 257, 51 Am. Rep. 154, 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 willful and wanton conduct of the defendant. The plaintiff's claim in each case rested on the failure to exercise ordinary care. In Schulwitz v. Delta Lumber Co., 126 Mich. 559, 85 N. W. 1075, the boy got on the wagon of defendant after it was unloaded and held onto 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 willful or wanton act of the driver brought about the injury. In Collins v. City of Chicago et al., 187 III. 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 wagon. He based his action on neg. ligence. 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 willfully." In Foster-Herbert Cut Stone Co. v. Pugh, 115 Tenn. 688, 91 S. W. 199, 4 L. R. A. (N. S.) 804, 112 Am. St. Rep. 881, 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 willful 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 willful and reckless acts of the employé, 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, 17 N. E. 788, 8 Am. St. Rep. 380, 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 In Driscoll v. Scanlon, 165 Mass. 348, 43 N. E. 100, 52 Am. St. Rep: 523, much relied on, the driver invited the boy on the wagon and allowed the boy to drive, while he him self went to sleep. In managing the lines the boy lost his balance and fell under the wag-thereby." peals in that case shows that that court reversed the judgment in favor of the plaintiff in the trial court "because it is contrary dence." In Enright v. Pittsburg Junction Rd. Co., 198 Pa. 166, 47 Atl. 938, 53 L. R. A. 330, 82 Am. St. Rep. 795, it is held: "A child of tender years, who while trespass-to law and against the weight of the eviing 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 sus tained." The court say (198 Pa. at page 170, 47 Atl. 939, 53 L. R. A. 330, 82 Am. St. Rep. 795): "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 employé in frightening him, so that he attempted to quit the train in the face of imminent danger." The court say further (198 Pa. at page 169, 47 Atl. 938, 53 L. R. A. 330, 82 Am. St. Rep. 795): "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 Colo. 222, 146 Pac. 263, L. R. A. 1915E, 888, Ann. Cas. 1916E, 1075, Euting v. C. & N. W. Ry. Co., 116 Wis. 13, 92 N. W. 358, 60 L. R. A. 158, 96 Am. St. Rep. 936, Nudelman v. Borden's Condensed Milk Co., 77 Misc. Rep. 103, 136 N. Y. Supp. 49, G., H. & S. A. Ry. Co. v. Zantzinger et al., 93 Tex. 64, 53 S. W. 379, 47 L. R. A. 282, 77 Am. St. Rep. 829, and Bucci v. Waterman, 25 R. I. 125, 54 Atl. 1059. In resisting the motion, counsel for defendant in that case invoked the application of rule XIX of this court (116 N. E. xvii), 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 duty 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 willfully 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 willful acts of the driver created the danger and injured him. 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 GoffKirby 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 [3] The authorities are uniform in holding here for final determination, on the ground that to constitute willful or wanton neglithat it was a case of public and great general gence it is not necessary to show ill will tointerest. That motion was overruled. While ward the person injured, but an entire abthe reason of the overruling of the motion sence of care for the life, person, or propdoes not appear, the entry of the Court of Ap-erty of others which exhibits indifference (128 N.E.) "If the servant's disobedience of instructions to consequences makes a case of constructive | the wanton and unlawful conduct of the or legal willfulness. A complete indifference driver. As said in 18 Ruling Case Law, 798: 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 et al., 260 Ill. 439, 103 N. E. 275, Bolin v. C., St. P., M. & O. Ry. Co., 108 Wis. 333, 84 N. W. 446, 81 Am. St. Rep. 911, L., N. A. & C. Ry. Co. v. Bryan, 107 Ind. 51, 7 N. E. 807, and Freeman v. United Fruit Co., 223 Mass. 300, 111 N. E. 789. In Aiken v. Holyoke Street Ry. Co., 184 Mass. 269, 68 N. E. 238, 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 (184 Mass. at page 271, 68 N. E. 239): "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 willful 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 willful 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. 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 intrusts 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 employé in the conduct of his business, and voluntarily substitutes the management and supervision of the employé for his own, the law holds him for what the employé does and scope of his employment. "Qui facit per while using the instrumentality in the course alium, facit per se." This is the rationale of the doctrine of respondeat superior. And we hold in this case that when the young boy, clinging to the running board of the truck had knowledge, was injured by the wanton in a precarious position, of which the driver and reckless acts of the driver, while in the course and scope of his employment, the employer is liable. [4] The simple violation of a statute or ordinance does not of itself constitute willful 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 de-. The unauthorized consent to ride was giv-termined by the jury in the light of all the en 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 heedlessly 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 128 N.E.-5 facts and circumstances shown by the evi- The judgment will be affirmed. NICHOLS, C. J., and 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 judg ment. The second paragraph of the syllabus In the name of humanity and justice, I vigorreads: "Where one is a trespasser on an auto truck, which has been committed to an employé by the owner for operation in the owner's business, and the trespasser is injured by the wanton and willful conduct of the employé 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 onto the wind shield and seat. While in this position the driver increased the speed of the truck to some 35 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 onto 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." ously 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. was upon this truck, not only by permission, but by invitation; true, at his own sugges This boy tion, but none the less an invitation. He was in no sense, either legally, justicially, 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 decision 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., reported in 227 N. Y. 465, 125 N. E. 807, and Rolfe v. Hewitt, reported in 227 N. Y. 486, 125 N. E. 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 11 years of age to ride with him. While the boy was getting upon the wagon, the driver whipped up his horses so sudThe material part of this quotation is the denly that the boy was thrown to the ground. 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 14 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 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. As a predicate for his holding, McLaughlin, J., said: vite the plaintiff to ride; in fact, he was acting "Huber [the driver] had no authority to incontrary 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. (128 N.E.) The Higbee Company was engaged in the busi- "And it will readily occur to every mind that ness of conducting a retail store for the sale the master cannot, in reason, be held responsiof merchandise. Komko was its employé op- ble generally for whatever wrongful conduct erating an automobile truck and delivering the servant may be guilty of. A liability so exmerchandise. Komko had finished making tensive would make him guarantor of the servhis last delivery, and while driving the truck ant's good conduct, and would put him under a responsibility which prudent men would heshomeward to the garage of the Higbee Com-itate to assume, except under the stress of pany the plaintiff and two other boys asked necessity. Even the parent is not made chargeKomko to let them ride a part of the way. able generally for the torts of his child; and The employé told them to get on. In this he if he cannot justly be held responsible for the violated the instructions of his employer. conduct of one whom the law submits to his Plaintiff boarded the running board of the general direction and discipline, much less could another be held liable, generally, for the acts truck. of a servant, over whom his control is comparatively slight, and who is not submitted to his disciplinary authority." 2 Cooley on Torts (3d Ed.) p. 1016, § 625. The legal principle is well settled that an employer is not liable for the tortious act of his servant: (a) Unless the servant or employé 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. Little Miami Rd. Co. v. Wetmore, 19 Ohio St. 110, 2 Am. Rep. 373; Lima Ry. Co. v. Little, 67 Ohio St. 91, 65 N. E. 861; White Oak Coal Co. v. Rivoux, Adm'x, 88 Ohio St. 18, 102 N. E. 302, 46 L. R. A. (N. S.) 1091, Ann. Cas. 1914C, 1082; Stranahan Bros. Catering Co. v. Coit, 55 Ohio St. 398, 45 N. E. 634, 4 L. R. A. (N. S.) 506. 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? To the same effect is the following from 2 Mechem on Agency (2d Ed.) § 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 The act cannot be deemed to be within the which the act done bears to the employment. 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 Had this case been one wherein Komko, on been brought against Komko, the driver, or this occasion, had invited another to place if the element of invitation were not inhis goods in the automobile truck for the volved, or the driver had negligently injured latter's convenience, and the goods had been the infant upon the streets of the city, a damaged by the negligent act of the driver, different principle would apply, entailing upon what principle could the employer be liability upon the part of the employer. held liable to the owner of the damaged However, in this case the authorities are goods? Or let us assume another case: in practical unanimity in holding the emA. orders his chauffeur to bring his automo- ployer free from liability. The reason given bile to his office, and while pursuing that is that the act of inviting others upon a engagement the chauffeur loads the vehicle vehicle of this character is entirely without for the convenience of the occupants. In the scope of the agent's authority, and in case of injury to the occupants by the negli- none of the cases does the liability of the gent acts of the chauffeur, would the owner principal hinge upon the degree of negliof the automobile be held liable? In the one gence used by his employé. The following case the chauffeur was employed solely to go cases, among many others, support the prinafter the employer, while in this the Hig- ciple here indicated Driscoll v. Scanlon, bee Company's authority extended only to 165 Mass. 348, 43 N. E. 100, 52 Am. St. Rep. the hauling and delivery of merchandise. In 523; Schulwitz v. Delta Lumber Co., 126 neither case did the authority of the employ- | Mich. 559, 85 N. W. 1075; Dover, Adm'r, v. er extend or apprehend the use of the vehicle Mayes Manufacturing Co., 157 N. C. 324, 72 for the conveyance of passengers. The rule S. E. 1067, 46 L. R. A. (N. S.) 199; Kiernan is well stated by Judge Cooley: v. New Jersey Ice Co., 74 N. J. Law, 175, |