LIABILITY FOR INJURY TO MINOR INVITED TO ASSIST BY EMPLOYEE CONTRARY TO RULE.

Court of Appeals for Cuyahoga County.

#### The Delivery Co. v. Callachan, by etc.*

Decided, July 2, 1917.

*Master and, Servant*— Contrary *to Rule Truck Driver Invites Minor to Assist*— Minor *Injured*— Employer *Liable*— Failure *to Request Special Instruction to the Jury*— Charge *Limited by Answer, When.*

1. Where an employee of a company engaged in delivering special packages invites a minor to ride on the truck and deliver packages for him, promising to pay the minor for such services, and the minor is injured through the negligence of the employee, the company is liable for such injury, notwithstanding it had a rule that employees were to allow none other than authorized employees to be and remain on such trucks.

2. Error can not be predicated with reference to the failure of the court to charge with reference to one phase of a case in the absence of a request to charge with reference thereto.

3. Where the answer contains a general charge of contributory negligence followed by specifications of contributory negligence, the court should limit the jury in its consideration of contributory negligence to the question whether or not plaintiff was negligent in the particular charged in the answer.

*Gage, Bay, Wilkin & Wachner,*for plaintiff in error.

*Chapman, Howland, Niman- & Waite*and *Geo. C. Hafley,*for defendant in error.

*

Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, October 9, 1917.

Lieghley, J.

Heard on error.

The parties stood in reverse order in the court below, and for convenience will be so named herein.

The plaintiff,- Charles M. Callachan, a minor, filed his peti*346tion in the court below stating that he was a minor; that on the 29th day of October, 1915, he received certain personal injuries through the carelessness and negligence of the defendant, for which he prayed for damages; that the denfendant company was engaged in the business of delivering packages for various concerns in the city of Cleveland by means of an automobile truck then and there in charge of one Stephan; that on the 26th day of October, 1915, the said Stephan was operating said truck in delivering packages at and near East 40th street and Payne avenue, where he met plaintiff and invited him on the truck and invited him to act asa“ jumper ’ ’ for him in delivering packages to customers, and promised to pay him for his services; that he did pay him; that this proceeding continued for four successive days, and that on the fourth day, through the carelessness and negligence of said Stephan i: the operation of said auto truck, plaintiff was injured; that plaintiff was not an employee of the defendant company; and that said defendant company, through its agent and servant, Stephan, was negligent in the following particulars:

1. By said Stephan operating said automobile in such a manner as to cause the same to suddenly jerk and throw plaintiff therefrom.

2. By said Stephan failing to guide and control said aid mobile so as to avoid running against and over plaintiff’s leg.

3. By said Stephan not stopping said automobile for plaintiff to alight therefrom.

. 4. By said Stephan ordering plaintiff to jump from said automobile while in motion.

Trial was had in the court below, which resulted in a verdict and judgment for plaintiff, from which judgment error is prosecuted in this court to reverse the same.

It is urged that the judgment is contrary to law. It is conceded that the doctrine announced in the case of *Cleveland, Terminal & Valley Rd. Co.*v. *Marsh,*63 Ohio St., 236, is controlling, unless the fact that the defendant company promulgated a rule expressly instructing employees to permit none *347other than authorized employees to be and remain on the truck requires the above case to be distinguished from the ease at bar.

Quoting from the syllabus in *Railroad Co.*v. *Marsh, supra.*

> “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 servants of the company.”

Quoting from the opinion, at page 245:

> “Where a person at the request of a servant of a corporation, assists such servant in the performance of his work without any purpose or benefit of his own to be served by such assistance, he is regarded as a mere volunteer, and the requests to charge would be applicable to such a case. But where he has a purpose or benefit of his own to be served by such assistance, in addition to the purpose of assisting the servant, he is regarded as acting in his own behalf, with at least acquiescence of the company. A trespasser who is upon the company’s premises wrongfully, and a mere volunteer, stand 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 wilful or intentional injury. But there is a class between mere volunteers and trespassers and partaking somewhat of the characteristics of each, that is where the person assists the servant at his request, not only for the purpose of assisting in the work of the master, but also for a purpose and benefit of his own. In such cases it can not be said that he is wrongfully upon the premises, because he is invited by the servant in charge. The master may not have assented, but neither has he dissented, and being there upon the invitation of the servant in charge and there being no dissent of the master, he is regarded as being there by sufferance. And being there by sufferance he is rightfully there for the double purpose of aiding the servant, and thereby furthering the interests of the master, and of furthering his own private interests in his own behalf and for his own purposes and benefits. In such cases the person so assisting cannot be held to thereby become a servant of the master, because the servant inviting such assistance has no power or authority to employ other ser*348vants, and therefore the law of fellow-servants is not applicable. As such assistant is not a trespasser, and not a fellow-servant, and not a mere volunteer, the law assigns to him without name the position of one, who, being upon the premises of another by the sufferance of such other, performing labor or service for his own purpose and benefit in his own behalf, is entitled of right to be protected against the negligence of the owner of the premises or his servants. The case of *Street Railway Co.*v. *Bolton,*43 Ohio St., 224, was decided upon this principle, although the principle is not very clearly stated in the report of the case.”

It is claimed that the promulgation of the rule amounted to a dissent on the part of the defendant. The plaintiff claims that he was a “licensee with an interest” under the rule in the above case. Does the rule — of which the plaintiff knew nothing, so far as the record shows — have the effect of changing the status of the plaintiff from that of a licensee with an interest to that of a trespasser or volunteer ? In this case it is conceded that the plaintiff was in the employ of -Stephan, and while so employed both were engaged in furthering the business of the master. We know of no authority for the doctrine that the promulgation of a rule for the direction and control of employees will excuse the master for the tort of the servant which results in injury to a third person, relieving the master of responsibility therefor. It seems to us that the authorities are to the contrary.

In the case of *Harriman*v. *Railway Co.,*45 Ohio St., 11, the court says at page 38 bf the opinion:

> “ So it may be said in this case, that at most it appears that the defendant’s servants, while acting in its business and within the scope of their employment, deviated from the line of their duty to the defendant and disobeyed its instructions. Nevertheless, while so deviating and disregarding their instructions, they were still doing their employer’s work, though not according to their instructions. And see *Quinn*v. *Power,*87 N. Y. 535.”

We quote from the syllabus in the ease of *Barrett, Gdn.,*v. *Railway Co.,*106 Minn., 51, 18 L. R. A. (N. S.), 416:

> *349“A master is responsible for tbe torts of his servant, done in the course of his employment with a view to the furtherance of his master’s business, and not for a purpose personal to himself, whether the same be done wilfully, but within the scope of his agency, or in excess of his authority, or contrary to the express instructions of the master.”

In a note appended to the last-mentioned report are cited many authorities in support of this doctrine.

It is our opinion, therefore, that the judgment is not' contrary to law under the doctrine announced in the *Marsh case*above referred to, and we are not disposed to depart from that doctrine, as urged upon us by counsel.

It is further urged that tbe judgment is against tbe weight of the evidence. We have examined the testimony of plaintiff and Stephan, the driver, and as we view it the circumstances developed by their testimony were such as to warrant the trial' eourt in submitting the ease to the jury. The jury resolved all the issues in favor of the plaintiff, and we think there is proof in the record to support that finding.

It is further claimed that the court erred in submitting to the jury the second, third and fourth specifications of negligence, respectively. From an examination of the proof we can not say that there was no evidence to support one or more of these specifications. Our disposition is that in the state of the record it is not material that some of the charges are not upheld by evidence, if others are, under the general principle announced in *Sites*v. *Haverstick et al.,*23 Ohio St., 626; *Beecher*v. *Dunlap et al,*52 Ohio St., 64; *McAllister*v. *Hartzel,*60 Ohio St., 69, and *State, ex rel. Lattanner,*v. *Hills,*94 Ohio St., 171.

It is further claimed that the court erred in its failure to charge the jury as to the duty of the plaintiff in the event his own evidence raised a presumption of negligence. It was admitted that no request was submitted to the court to charge upon this subject, and in the absence of a request no prejudicial error can be successfully claimed for a failure so to do. *State*v. *Schiller,*70 Ohio St., 1, 8, and *State*v. *McCoy,*88 Ohio St., 447, 453.

*350It is further urged that the court erred in its charge on the subject of contributory negligence. The answer of the defendant contains a general charge of contributory negligence, followed by a specification to the effect that the plaintiff jumped, etc. The court in its charge limited the jury in a consideration of contributory negligence to a determination of the question of whether or not the plaintiff was negligent in the particuJ lar charged in the answer. We think the court was right. *N. Y., C. & St. L. Rd. Co.*v. *Kistler,*66 Ohio St., 326, 333.

It is further urged that the court erred in refusing to give defendant’s request No. 7. This request required the jury to confine its deliberation upon the ease to a consideration of specification of negligence No. 1. In the view we have of the cáse, as before stated, we think it would have been error in the court to have given the same.

We find no error in the record prejudicial to the rights of the defendant, and the judgment of the court below is affirmed, with costs assessed against plaintiff in error.

Judgment affirmed.

Grant and Carpenter, JJ., concur.