Malloy v. Bohemian Daily , 29 Ohio App. 331 ( 1928 )

This case comes into this court on a petition in error to the common pleas court of Cuyahoga county to reverse a judgment there rendered against Howard Malloy, the plaintiff below.

It seems that plaintiff in error, plaintiff below, is a boy, and at the time complained of was standing on the sidewalk at West Fiftieth street and Clark avenue, but for just what purpose he was there does not appear, and it makes no difference. He was rightfully on the street.

The record shows that the defendant in error was the owner of the American Bohemian Daily, and that it delivered its paper in bundles to various places in the city of Cleveland, and for that purpose employed a person who drove a truck belonging to it, containing the newspapers done up in large bundles, to be distributed at different points in the city, and to be there obtained by the distributing agents for the purpose of distribution among the subscribers to the Bohemian Daily.

The evidence shows that on the particular day in question the truck belonging to the defendant in error was driven by its servant for the purpose of distributing its papers, and that it was the custom to drive up to the curb and throw the papers upon the sidewalk.

It further appears from the record that a couple of boys, who apparently were friends of the driver, who was a youth, were in the truck with him, and that as they approached West Fiftieth street, on Clark avenue, where a bundle of the papers was to be delivered, and the papers were evidently marked for this particular location, the driver, without stopping, drove up close to the curb, and it is said that one of these boys, either with the driver's instructions, or of his own volition, pushed this bundle of papers off, and it knocked the plaintiff down, broke his leg, and injured him, so that he is permanently disabled, by reason of which this action was brought.

When this case was presented to the court, and the plaintiff had introduced his evidence, there did not seem to be any evidence to show that the driver of this truck, the employee of the defendant in error, was authorized to have boys ride with him, and inasmuch as one of these boys apparently shoved this bundle of papers onto the sidewalk, although this is disputed, it was claimed that the doctrine of respondeat superior would not apply, wherefore, on motion, a verdict was directed for the defendant in error against the plaintiff in error; and it is to reverse that judgment that error is prosecuted here.

I cannot agree with learned counsel that it was necessary to prove that this employee of the defendant in error had authority to employ some one else. In the first place, as I get this case, there was no employment of anybody else. This driver had a duty to perform, and that was to deliver these papers at this corner, and the truck was used for that purpose, and if this bundle was put in the window of the automobile, so as to make ready to do that, it must have been with the connivance and under the instructions of the driver. If he had taken a stick and pushed the bundle out, or kicked it out on the sidewalk, there would be no doubt that there would be a liability. Now the mere fact that, instead of using a stick to throw the bundle off, the driver enlisted the aid of a boy who was riding with him, does not change the act from an act of the driver; for it must be remembered that it was the driver's duty to deposit this bundle of papers at this particular place. So I say that whatever act was done by one of these boys, if the act was done by one of them, was as a matter of fact the driver's act, and the boy was simply the means or the medium through which the purpose was accomplished, and so the driver was acting within the scope of his employment, and acting for the defendant in error, when these papers were deposited there, and hence I think there is a question to go to the jury, whether or not there is a liability, and the court erred in directing a verdict for the plaintiff.

Now we are not left to conjecture in this respect. There is a recent case, so on all fours with this case that there can be no misunderstanding the trend of the court, and that case is Semper v. American Press, 217 Mo. App., 55, 273 S.W. 186, where we learn from the opinion of the court that an employee of a newspaper company, employed under circumstances exactly similar to those of the instant case, got a boy friend to go with him to throw off papers, without any authority from his master, and in throwing off the papers a person was injured, just as the boy was injured in the case at bar, and the court in the Semper case held that it was not the act of the third person, of a volunteer, but was the act of the servant of the defendant.

There could not be a case more on all fours with the instant case than that case; but, irrespective of that case, by an analogy of reasoning it cannot be possible that where the agent of an employer who wants to have papers delivered upon a street corner, in order to get the thing done more quickly, gets a friend to go with him, and being at the wheel, and driving past the spot, orders the friend to throw these things off, which results in an injury to a person rightfully upon the sidewalk, the employer can escape responsibility on the ground that the one who threw off the bundles of papers was a mere volunteer. The act all the time is the act of the employee of the defendant company, in pursuance of his duties, and in no sense is it necessary to show that there was power to employ other persons. In fact, there was no employment of other persons. The employee of the company did the work himself, and the other person was only the means through which he did it — was only the instrument which he used. Consequently there was evidence at least to go to the jury in this case.

A Massachusetts case was cited here to the effect that, where a driver of a truck invites a friend to go along, and then gives the friend the wheel, who drives on the wrong side of the street and injures some person, the master would not be responsible. I do not accede to that as being the law. On the contrary, the case of City of Indianapolis v. Lee, 76 Ind. App. 506, 132 N.E. 605, decided by the Appellate Court of Indiana, Division 2, on October 28, 1921, is to the contrary. The act of the driver, if he permits a friend of his to take the wheel, and the injury occurs by reason of the negligence, is the act of the driver, just the same as though he himself were at the wheel. An owner of a truck cannot escape responsibility in that way. If the person does not understand how to drive the car, and injures another, the act is the act of the driver who had charge of the truck, and the company for which he works is responsible.

Other cases are cited, and all could be distinguished, if it were necessary; but the court thinks that the judgment of the court below was wrong, because there was surely evidence to go to the jury. And we think the case should be reversed and remanded to the trial court for a new trial.

Judgment reversed and cause remanded.

LEVINE, J., concurs.

SULLIVAN, P.J., not participating.