Dissents:
It is with regret that I find myself unable to agree with the majority opinion.
In my judgment the applicable law under the factual conditions existing as presented through the record demands a finding and judgment for the defendant. In my opinion we should find prejudicial error on the part of the trial court in not sustaining defendant’s motion for directed verdict at the close of plaintiff’s evidence, renewed at the termination of all the testimony and further presented on motion to enter final judgment notwithstanding the verdict. I think the applicable law so requires under any contract for hauling, but additional reasons are presented in the instant case when it was shown that the defendant was a permit-holder ' of an order issued by the Public Utilities Commission of Ohio and thereby was subject to the duly enacted rules by the Commission.
Rule 10 of such rules reads as follows: .
“10. NO PASSENGERS. — No person except the carrier, employees of the carrier, representatives of the shipper when their presence is necessary for the safe care of live stock, representatives of the Commission, or public officials in the proper performance of their duties, shall be transported upon any motor vehicle; provided, however, that each person permitted by this paragraph to be transported upon such motor vehicle, except those engaged in the actual operation of the vehicle, shall have printed or written authority therefor from the carrier.”
Rule 1 of the regulations provides that drivers for motor transportation company shall be conversant with the adopted rules and subject themselves to suspension or- discharge if guilty of violation.
The driver Francis testifies that he was familiar with the rule prohibiting the transportation of passengers. It was in evidence that the defendant, Kidwell, had instructed his drivers, including Francis, that they should not carry passengers. The only reason given by Francis, the driver, for permiting Edelstein to occupy the seat with him without objection was the information given him by the defendant that Edelstein would go to their point of destination and point out the scrap to him to be transported.
The leading case in Ohio which states the general rule is Electric Company v Krause, 133 Oh St 81. Syllabi 1 and 2 read as follows:
“1. The owner of an automobile being driven by a servant in the business of the owner within the scope of the servant’s employment is not liable for damages to a guest of the servant for injuries caused to such guest by the negligence of the servant while riding in the automobile without the knowledge and consent of the owner, it not appearing that such guest, is at the time rendering necessary assistance ■ to the servant within the scope of his employment.
*5732. Where the owner of an automobile entrusts the same to a servant in the course of the business of the owner, without authority to carry passengers, a guest of the servant riding in the automobile is neither an invitee nor a licensee of the owner, but on the contrary is a trespasser to whom no duty is owing by the owner, except not to wilfully injure him.”
The all-important question is whether or not plaintiff’s decedent comes within the exceptions to the general rule. Counsel for plaintiff in their brief cite numerous cases and quote therefrom, but many of these cases lend us no aid for the reason that they deal with situations where the owner of the vehicle is the operator, and it at once appears that under such situation the entire field of liability is not covered.
Counsel for plaintiff at pages 10 to 13, inclusive, of their brief, cite authorities claimed to be determinative.
The first case cited is that of Krull v Dairy Company, 59 Oh Ap 107. The first syllabus reads as follows:.
“1. Where a person is on a truck belonging to a company, at the invitation of the company’s driver, for some purpose and benefit to himself in addition- to assisting the driver in the performance of his duties for the company, with the consent of the company and without knowledge of any rule prohibiting his employment by the driver, such person is neither a trespasser, a volunteer, nor a servant of the company, but is there by sufferance and is entitled to be protéctéd from the negligence of the defendant’s servants.”
This cited case is to be distinguished in that the above quoted syllabus presents the following facts not present in the instant case:
1. The injured person was in the truck at the invitation of the company’s driver.
2. For the purpose of assisting the driver in the performance of his duties for the company.
3. With the consent of the company and without knowledge of any rule prohibiting his employment by the driver.
In the instant case plaintiff’s decedent was not in the truck at the invitation of the driver; he was.not assisting the driver in the performance of his duties; he was not in the truck with the consent of the owner; he was in the truck in direct violation of Rule 10 of the Public Utilities Commission.
Reference is also made to the case of Cleveland Terminal & Valley Railroad Company v Marsh, 63 Oh St 236. Syllabus 3 reads as follows:
“3. One who is invited by a servant of a corporation in charge of its work or service to assist him therein, and does so with some purpose or benefit to be subserved in his own behalf in addition to the purpose of so assisting, is not a volunteer and is entitled while so assisting, to be protected against the negligence of the servant of the company.”
Again, this case is to be distinguished in that the injured person in the reported case had been employed by servants. of the corporation to do certain daily service for which he- was paid.
The next case is Ohm v Miller, 31 Oh Ap 446. In this reported case the injured person, on invitation of the driver of a vehicle belonging to the master, was assisting in backing the truck into a garage and during the operation was injured. Under the facts of the case the Court held there was an emergency confronting the driver in getting his truck and cargo under cover to prevent damage from an impending storm. I am unable to see that this case is comparable to the instant case.
The next case is Street Railway Co. v Bolton, 43 Oh. St 224.
In this case the injured person was a passenger on defendant’s street railroad, traveling northwardly. The railway v/as a single track, with occasional side tracks for the passage of cars mov*574ing in opposite directions. A northbound car, having been drawn beyond the sidetrack where it was to have met a southbound car, it became necessary to push it back to the sidetrack so that the cars could pass and proceed to their destination. At the request of the driver of the northbound car plaintiff assisted in pushing the car back to the track. While so engaged, without fault on his part, he was injured by the negligence of the driver of the southbound car. It was held that the plaintiff was not engaged in the service of defendant as a mere volunteer.
I think the distinguishing. features to the instant case are apparent.
The next case cited is that of Jarman v Youngstown Hide & Tallow Co., 15 Abs 380. The syllabus in this case is as follows:
“The owner of an automobile being driven by a servant in the business of the owner within the scope of the servant’s employment is not liable for damages to a guest of the servant for injuries caused to such guest by the negligence of the servant while riding in the automobile without the knowledge and consent of the owner, where it does not appear that such case was at the time rendering necessary assistance to the servant within the scope of his employment.”
It at once appears that there is nothing in the above-quoted syllabus helpful to appellee’s cause. Reference is made to a statement of Judge Pollock in the opinion as follows:
“It might have been a different proposition in this case if, when the driver of the automobile had driven to where he was to load carcasses, • he could not load them and found that he had to call in some one in such emergency and the injury had occurred while he was assisting. That would be a different proposition, but this young-man was taking a ride, -going, .a distance of possibly ñfty miles, and was riding along the public highway in this automobile, at the time rendering no assistance.”
I am unable to conclude. that either on the authority of the cited cases or on reason, that plaintiff’s decedent in the instant ease was included in the exceptions tp the general rule. It seems to me that plaintiff’s decedent was in the same position as a person who boards a railroad train without a ticket and refuses to pay his fare. The mere fact that the ones in charge do not stop the train and put him off would 'not change his position from that of a trespasser to a passenger. The only duty owing him would be to not wilfully or wantonly injure him.
In the instant case it might be concluded that common courtesy would prompt the driver to impliedly consent to plaintiff’s decedent to ride with him, since it was known that the decedent had something to do with procuring their cargo at the point of destination. This sounds reasonable, but in the face of the instructions from his master and in violation of the known rules of the Public Utilities Commission, was he authorized under the law to extend such courtesy? Every occupant of a motor vehicle is a liability risk. Does not the law say that this additional risk may not be imposed upon the master by the servant without his knowledge and consent?. There is no evidence in the record that the driver either invited or consented to plaintiff’s decedent riding in. the truck. It was the opinion of the trial court, concurred in by the majority in this court, -that there was an implied consent due to the fact that otherwise the drivers of the two trucks would have been compelled to return to Columbus without their cargo. Even under the emergency theory it must be conceded that there was no emergency so far as the defendant was concerned. An emergency did present itself to plaintiff’s decedent. It is a matter of common knowledge that he could have continued his journey to the point of destination through other *575means of transportation. He chose on his own invitation to occupy a seat alongside the driver on defendant’s truck. Under such situation he assumed the risk and no liability attached against the defendant except to refrain from wilfully or wantonly injuring him. Under Rule 10 of the Commission, above quoted, the defendant owner had no right to transport the plaintiff’s decedent. The driver of the truck was familiar with the rule and thereby knew that he had no right to invite the plaintiff decedent to ride in the truck. In addition, the driver testified that he had express instructions from his employer not to carry passengers.
The principle of law is well recognized that the burden is on the plaintiff to prove that any actionable conduct on the part of the driver was within the scope of his authority.
If under Rule 10 in connection with direct instructions not to carry passengers there would be no authority on the part of the driver to invite plaintiff’s decedent to ride, how can it be said that an invitation would be implied?
A case very similar in its facts to the instant case is that of Te Selle v Terpstra (Wash.), 38 Pac. 2d. 379. Syllabus 1 reads as follows:
“One who hired another’s truck to transport his furniture and who, with driver’s consent, and without any agreement for payment for his own transportation, rode with the driver, held, mere guest for whose death in accident driver was not liable in absence of gross negligence.”
Through reading thé above syllabus it might be inferred that the action was against the driver of the truck and not the owner. A reading of the statement of the case will disclose that the owner and driver were one and the same person. In this Washington case there is nothing to indicate that the owner of the truck was operating under a permit order as was the situation in the instant case. From this it'follows that the instant case presents a stronger reason for adopting the rule announced in the Washington case.
I also dissent from the majority opinion in sustaining the trial court in granting a new trial to plaintiff for the sole purpose of determinng the amount of damages. In so doing' it must be understood that I am not in any sense receding from my former position that final judgment should be entered against the plaintiff..
ON RECONSIDERATION OF FORMER RULING
No 3368. Decided July 29, 1941
BY THE COURT:The appellant moves for reconsideration of our former ruling with respect to limiting the granting of a new trial to a single issue, namely, reassessment of the damages only.
We hold in our decision that the order of the trial judge granting the new trial and limiting it only to a consideration of the damages to be awarded the administratrix was not prejudicially erroneous.
Wé do not want to be understood, nor do we say, that the trial judge, when this cause comes on again for trial, could not permit, if sufficient reasons appear, the defendant to amend his answer and to make the defense therein set forth an issue for the consideration of the jury. In remanding the cause the entry may provide for modification of the judgment entry in the Common Pleas Court which will enable that court to use its discretion, if an amended answer is tendered, in determining whether or not a new trial should proceed upon another or further issues which is not made by the pleadings before us in this appeal.
GEIGER, PJ. & HORNBECK, J, concur. BARNES, Ji, dissents.