(dissenting).
The facts in this case were stipulated by the parties on the rehearing before the Industrial Commission. In the stipulation, the parties agreed “that the only question at the present time is the question as to whether or not Prank Yaro Cherney came to his death in the course of and arising out of his employment.”
The following are the controlling facts in this case as stipulated by the parties:
1. The decedent was an employee of The J. L. Harper Company which had its garage for storage of its trucks at 3625 Prospect Ave. in the City of Cleveland. It was the practice of the employees of J. L. Harper Company to report for the start of the day’s work at the said garage, from which point the employees would drive out, or be driven out in a' truck owned by The J. L. Harper Co.
2. On the day that decedent met his death, he and other employees had gone out to the job at the plant of the Otis Steel Company on Jennings Road, in the company’s truck at about 8:00 A. M. One Jesse Kaiser, also an employe of J. L. Harper Co., was in charge of the operation of the job and the decedent Cherney worked under his supervision.
3. The work of the day was completed about'4:30 P. M. and both Kaiser and Cherney left the grounds of the Otis Steel Co., in the employer’s truck with the decedent, Cherney, driving the truck.
4. Prior to this day, both Kaiser and Cherney would usually leave the Otis Steel plant at 4:30 P. M. and directly proceed to the garage on Prospect Ave. The usual route consisted in driving the truck to Indepeñdence Road; then north on Independence Road to Broadway; east on Broadway to E. 30th St; then north to Prospect Avenue and east on Prospect Avenue to the garage at 3625 Prospect Avenue where the truck would be left for the night.
5. On the day in question, instead of taking the usual direction, the decedent at the request of Kaiser, drove Kaiser to the downtown section of Cleveland known as 700 Prospect Avenue and arrived there at aproximately 5 P. M. The record is silent as to why Kaiser wanted to make this detour.
6. Kaiser got out of the truck and advised Cherney as follows: “You put the truck away and I will see you in the morning.” Kaiser saw Cherney proceed in an easterly direction on Prospect Avenue and this was the last time that Kaiser saw Cherney until after the accident.
*3667. As to what the decedent did, or what route he took prior to the accident, the stipulation is silent. It states: ‘Tt is further stipulated by and between counsel that at the time of this stipulation no evidence is available as to the activities or whereabouts of the decedent from the time he left Kaiser to the time of the accident.”
The accident occurred about 7:30 P. M. while the decedent was driving the truck in- an easterly direction on Woodland Avenue in the vicinity of East 28th Street where the truck driven by decedent collided with another car. Cherney died four days later from the injuries he received in the accident.
The direct route from the point where Kaiser parted with Cherney at 5 P. M. was for the latter to proceed easterly on Prospect Avenue to the employer’s garage. It is evident that the decedent did not follow this route. This, as stated, is all we know from the stipulated facts. No light is cast by the stipulation on whether or not the decedent departed from the direct route on some business of his employer or for his own purposes.
If the decedent departed from the direct route on business of his own,, at all times it continued to be his duty to put an end to the deviation and to return the truck to the employer’s garage. The direct route from the point of the accident to the' garage was easterly to E. 30th St., north on E. 30th to Prospect, thence east to the gararge. The decedent at the time of the -accident, therefore, was proceeding easterly toward E. 30th Street and was actually within two blocks of the place where Woodland Avenue intersects the usual route from, the plant of the Otis Steel Co. to the employer’s garage.
It is therefore clear that even if it be held that it is a proper inference from the stipulated evidence that the decedent after leaving Kaiser, departed from the direct route to the garage on his own business (in support of which inference there is no direct evidence in the record) the position at which the accident occurred and the direction the truck was going. are wholly consistent with the view that the deviation, if any, had been terminated and that the decedent was not at the time proceeding on his own business but was engaged in returning the truck, as it was his duty to do, to the employer’s garage.
The question whether or not the decedent, Cherney, at the time of the accident was acting in the course of his employment is the same question as would be presented if a person injured in the accident were attempting to hold the decedent’s employer liable for the former’s negligence on the principle of “respondeat superior.”
*367It is well established in this state that where a person is employed by the owner to drive an automobile and it collides with another car, a jury is authorized to infer the further fact that the employe was using the machine upon the employer’s business, and was acting within the scope of his employment in the absence of evidence showing the contrary to be true. (See 36 O Jur 680, Sec. 675 on Master and Servant.)
The latest pronouncement of the Supreme Court on this point is to be found in Hawkins v Wilkoif Co., 141 Oh. St 139, where the court said at page 145 (after referring to White Oak Coal Co v Rivoux, Admrx, 88 Oh St 18 and Sobolovitz v Lubric Oil Co., 107 Oh St 204):
“When such essential facts as shown in the last two above cited cases are shown, an inference arises that in operating the instrumentality at any specific time, the operator is acting within the scope of his authority, and this stands as an item of evidence, subject to be counter-balanced or overthrown by other competent evidence. * * *. No such inference however, can arise until it is first shown that the person operating the instrumentality is in fact employed by the owner for that purpose.”
It is conceded in this case that the decedent in operating the employer’s truck was “employed by the owner for that purpose.” That is, it was his duty and a part of his employment on that day to drive the truck to the employer’s garage to be stored there until the following day. The position of the truck at the time of the collision, as well as the direction it was proceeding, was wholly consistent with the view that at the time of the collision the decedent was taking the most direct course from the point at which the accident' occurred to the employer’s garage and that accordingly the decedent met his death while, in the language of the stipulation, he was “in the course of and arising out of his employment.”
The present case is one, in my opinion, where the rule stated by the supreme court in Industrial Commission v Pora, 100 Oh St 218, at page 223, should be applied, namely, that the Workmen’s Compensation Law “commands a liberal construction in favor of the employee.”
There is a question whether two of the Judges of this Court have the power, in view of the provisions of Article XXIV, Sec. 6 of the Constitution of Ohio, to reverse the judgment of the Common Pleas Court in this .case. Without passing upon this question, I wish firmly to register my dissent from the majority opinion in this case.