Appeal, No. 209, Jan. T., 1939, from judgment of C. P. No. 3, (tried in C. P. No. 6), Phila. Co., Dec. T., 1937, No. 1256, in case of William Reis v. Charles Mosebach et al., trading as Mosebach Brothers, Judgment affirmed.

Trespass for personal injuries. Before BOK, P. J.

The facts are stated in the opinion of the lower court by BOK, P. J., which was as follows:

On June 28, 1936, plaintiff was thrown from defendants' truck and injured. It is admitted that he was not in the defendants' employ and that the driver of the truck was not negligent. The negligence alleged was the defendants' failure to keep their truck in proper repair.

We are asked to enter judgment for the defendants notwithstanding a verdict against them for $6,225.00. We feel this must be done.

Plaintiff met the defendants' driver, Hannigan, on the street car while going to work, at about 3:30 in the morning. Hannigan asked him to go on his truck to help him deliver milk, and introduced him to a Mr. Taylor, one of defendants' route foremen but not the foreman from whom Hannigan received instructions. Reis had no conversation with Taylor, but Hannigan said he told Taylor he was taking Reis with him on his route. At the defendants' garage Hannigan took out the truck while Reis waited outside. Reis then boarded the truck and Hannigan drove it to the loading platform. While the milk was being put aboard Reis sat in the cab, which was open, on a box beside the driving position, as there was only one seat.

Reis and Hannigan both testified that there were people around the loading platform, including one of the Mosebach brothers, now deceased, and some of the defendants' other drivers.

Hannigan had taken helpers along before, but there is no evidence who they were or whether they were employes of the defendants. He had never taken Reis with him before, and he was positive that he had never been instructed not to take riders along. While on the route, the steering apparatus locked and the truck ran into a pole.

Plaintiff's effort at the trial was to show circumstances from which the jury could infer that the defendants knew or must have known that Reis was going out on the route. He contends that their tacit acquiescence to his doing so gives rise to their legal obligation to protect him by reasonable care.

In our opinion the evidence falls short of this. Taylor, the man in the street car, was neither Hannigan's superior nor an executive or partner in the firm. There is no evidence that Taylor was on his way to work. Hannigan knew his superior, a person named Barnett. He stated that he could not say whether anyone saw Reis at the loading platform, and there is no other evidence on the point. He could not remember whether Mosebach checked his load before he left. No one knew, except Hannigan, that Reis was intending to travel the route. The cab was fitted with only one seat, and that was for the driver.

This case does not fall within the rule of Hartigan v. Public Ledger Co., 291 Pa. 588 (1928), and its like, where there were definite instructions against carrying riders. The pertinent rule here, in our opinion, is that of Hughes v. Murdoch S. T. Co., 269 Pa. 222 (1920), where Mr. Justice KEPHART said:

". . . To sustain a recovery, under these circumstances, it should appear that the act of the driver in permitting the boy to ride, was fairly within the scope of his employment: Wind v. Steiert Son, 71 Pa. Super. 194; Byrne v. Pittsburgh Brewing Co., 259 Pa. 357; Scheel v. Shaw, 60 Pa. Super. 73. If he so acted, the master owed a duty through his agent to see that no negligent act should happen that might injure the invitee. The test is not that, when the invitation was given, he was engaged in the course of his employment in his master's business, but was the invitation or its consequences in furtherance of the master's business, so that it might be said to be impliedly within his authority? The master is bound by the acts of his servant in the course of his employment, but he is not bound by those outside of such employment. The servant (a truck driver) has no right to impose upon his master's onerous liability by holding him responsible for the safe carriage of any person he may see fit to accept as a passenger. Such persons, so invited or permitted to ride, should know of this obvious lack of authority from the position the man holds and the character of his employment. If there was some risk in riding, the passenger assumed whatever risk there was, as well as that which came from his alighting and leaving the truck. The servant's duties were those of an ordinary driver of a truck, and at the time of the accident he was engaged in the performance of such duties. He had no implied authority to permit boys to ride on his truck, and acted beyond the scope of his employment when he did so." (Underscoring ours.)

The only exception to this rule appears in Byrne v. Pittsburgh Brewing Co., 259 Pa. 357 (1918), where the Court said: ". . . It is a rule universally recognized that the relation of master and servant cannot be imposed on a person without his consent, express or implied. It is upon the exception to this general rule, which is quite as well settled as the general rule itself, that the plaintiff relies to establish the relation of master and servant in this case. The exception is that a servant may engage an assistant in the case of an emergency where he is unable to perform the work alone."

There is no allegation here of an emergency.

In short, the burden is upon the plaintiff to show express or implied authority from some responsible representative of the defendants other than the driver. See D'Allesandro v. Bentivaglia, 285 Pa. 72 (1926); Corbin v. George, 308 Pa. 201 (1932); Tusko v. Lynett, 326 Pa. 449 (1937).

Certainly there is no express authority here, and there are no circumstances which might warrant an implied authority by acquiescence, as in Florida Dairies Co. v. Rogers, 119 Fla. 451, 161 So. 85 (1935), or Voshell v. Freihofer's Baking Co., 5 N.J. Misc. 270, 136 A. 328 (1927), cited by the plaintiff. The evidence does not place Mosebach in any particular position at the loading platform from which the jury might be permitted to say that he should have seen Reis. From the testimony, or rather from the lack of it, the jury could only guess, and that is not permissible.

In view of this lack of authority, the defendant owed the plaintiff no duty save to refrain from wanton conduct, and there is not only no evidence of this, but plaintiff did not try his case on that theory, there being no objection to the following part of the Court's charge: "I think it also fair to say that there is no element in the case of wilful, deliberate, reckless carelessness: I mean the kind of deliberate thing that isn't really carelessness, but goes beyond that and becomes wanton conduct. Certainly this defendant, by its mechanics who repaired its trucks, didn't mean to hurt this particular plaintiff, so we eliminate any question of wilfulness from the case."

Judgment is entered for the defendants, notwithstanding the verdict.

Plaintiff appealed.

Errors assigned were entry of judgment n. o. v. and the striking out of certain testimony.