Higbee Co. v. Jackson, No. 16388.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: JOHNSON
• Citation: 128 N.E. 61,101 Ohio St. 75
• Parties: HIGBEE CO. v. JACKSON.
• Docket Number: No. 16388.
• Decision Date: 24 February 1920

101 Ohio St. 75
128 N.E. 61

HIGBEE CO.
v.
JACKSON.

No. 16388.

Supreme Court of Ohio.

Feb. 24, 1920.

Certified by Court of Appeals, Cuyahoga County.

Suit by Walter Jackson, an infant, by his next friend, against the Higbee Company. A judgment entered on a directed verdict for defendant was reversed by the Court of Appeals, which certified the record to the Supreme Court for review and final determination. Affirmed.

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, willfully, 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 onto and along the left, or south, side, and ran the same at an excessive and unlawful rate of speed, to wit, 45 miles an hour; and that while so running the machine the defendant, through its operator, ran it onto 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. Skufca, 9 Ohio App. 177, therefore certified the record of this case to this court for review and final determination.

Jones, J., dissenting.

Syllabus by the Court

Where an employé, 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 willful conduct of the employé, while in the course and in the scope of his employment, the owner is responsible.

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.

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.

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 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.

[Ohio St. 77]Howell, Roberts & Duncan, of Cleveland, for plaintiff in error.

S. V. McMahon and F. W. Zimmerman, both of Cleveland, for defendant in error.

[128 N.E. 62]

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,[Ohio St. 78]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 onto the windshield 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.

The doctrine of respondeat superior had its origin in considerations of public policy. Out of the [Ohio St. 79]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 willful, 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 [Ohio St. 80]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 willful 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 willful.

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 willful and wanton conduct, [Ohio St. 81]which was...