J., dissenting. “Every person shall be liable for torts committed by his wife, and for .torts committed by his child, or servant, by his command or in the prosecution and within the scope of his business, whether the same be by negligence or voluntary.” Civil Code (1910), § 4413; Central of Ga. Ry. Co. v. Brown, 113 Ga. 414 (38 S. E. 989, 84 Am. St. Rep. 250); Southern Ry. Co. v. James, 118 Ga. 340 (45 S. E. 303); Savannah Electric Co. v. Wheeler, 128 Ga. 550 (58 S. E. 38, 10 L. R. A. (N. S.) 1176); Toole Furniture Co. v. Ellis, 5 Ga. App. 271 (68 S. E. 55). Thus, it is the general rule that the master is liable for the acts of his servants, when done within the scope of their employment, whether the act is wilful or otherwise. Smith v. Holbrook, 99 Ga. 256 (25 S. E. 627); Exposition Cotton Mills v. Sanders, 143 Ga. 593, 595 (85 S. E. 747); Century Building Co. v. Lewkowitz, 1 Ga. App. 636, 639 (57 S. E. 1036); Lewis v. Amorous, 3 Ga. App. 50 (59 S. E. 338); Savannah Electric Co. v. Hodges, 6 Ga. App. 470 (65 S. E. 322); Louisville & Nashville R. Co. v. Hudson, 10 Ga. App. 169, 171 (73 S. E. 30). While this code section has been applied in numerous railway cases (see Central of Ga. Ry. v. Brown, 113 Ga. 414, 38 S. E. 389, 84 Am. St. Rep. 250), it appears that the rule of liability on the part of railway companies is not wholly fixed and determined by the provision of law quoted, but is enlarged or modified by the provisions of section 2780 of the Civil Code (1910), which provides as follows: “A railroad company shall be liable for any damage done to persons, stock, or other property by the running of the locomotives, or ears, or other machinery of such company, or for damage done by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.” Accordingly, it was held in Smith v. Savannah, Florida & Western Ry. Co., 100 Ga. 96 (27 S. E. 725), cited in the majority opinion, that a railway company was liable for the act of one of its employees in wantonly pushing a trespasser from a train irrespective of “whether ejecting trespassers therefrom was or was not within the scope of this em*378ployee’s duties thereon.” In Waller v. Southern Ice & Coal Co., 144 Ga. 695 (87 S. E. 888), it was held that “Where the driver of an automobile truck which belonged to the defendant company, and which was used solely for the purpose of carrying ice, while driving the truck, apparently in the ordinary discharge of his duties, upon the request of a boy having in charge as nurse a child of tender years, permitted the nurse and the child in his charge to get upon the running-board of the truck, which was about twelve inches from the ground and about twelve inches broad, and ride thereon, such action upon the part of the driver in giving permission to the children to mount the running-board and in allowing them to ride was entirely without the scope of his duties as an employee of the owner of the truck. And where the child of tender years, in dismounting from the running-board, fell under the wheels of the truck while it was in motion, and was killed, the company was not liable in damages to the mother of the child, who brought suit against the company, alleging that the child contributed to her support and that she was dependent upon him; and the court did not err in granting a nonsuit at the conclusion of the plaintiff’s testimony.” See also Tate v. Atlantic Ice & Coal Co., 25 Ga. App. 797 (104 S. E. 913); Morris v. Fruit Company, 32 Ga. App. 788 (124 S. E. 807). Since in the instant ease the theory of liability is necessarily limited to the doctrine of respondeat superior, and since the act of the servant in permitting the plaintiff to ride on the truck was wholly beyond the scope of his authority, and appears to have been done entirely without the knowledge or consent of the master, it does not seem- to the writer that the master should be held liable for an act, whether wilful and wanton or not, for which he was in no wise responsible. It is true that if in inflicting the injury the servant was engaged in the duties of his employment, the fact that the injured party, was a trespasser would not absolve the master from liability, provided the conduct of the servant was wilful and wanton; but in a case where the determining question is whether the act was or was not in a legal sense the act of the master, it does not seem that the degree of another’s negligence has any bearing upon the question of the master’s liability. My colleagues apparently base their holding to some extent upon the ruling above quoted from the case of Smith v. Savannah, Florida & Western Railway Co., supra; but as has been already indicated, *379the provisions of section 2780 of the Civil Code (1910),‘referring to railway companies, does.not have application here; and besides, in that case the flagman in ejecting the trespasser from the train was certainly acting within the scope of the company’s business, while in the instant case it surely could not be contended that either the pleadings or the proof in any wise suggest that the driver of the truck, after inviting the deceased to ride, employed the alleged reckless and wanton manner of driving the car as a secret means of ejecting his guest from the truck, in pursuance of his duty to his master. In my opinion the action of the trial judge in granting the nonsuit was correct.