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Dissenting Opinion, per JONES, J.

authority. The plaintiff was not a trespasser. He got upon the wagon with the consent of the driver. He was not a licensee of the master, but was a licensee of the agent only. Rolfe v. Hewitt, supra.

I now advert to some of the cases cited in the majority opinion, and do so only because the principles there decided are readily distinguishable from those in other cases decided by the courts of the same states which deny liability under the facts involved here. In Enright v. Pittsburg Junction Rd. Co., 198 Pa. St., 166, the element of invitation by the employe was not involved. In that case the court cited the earlier case of Flower et al. v. Pennsylvania Rd. Co., 69 Pa. St., 210, which denied liability where a boy was invited to ride. Neither was the element of invitation involved in the cited case of Powers v. Harlow, 53 Mich., 507. But the principle here involved was decided in the later Michigan case, Schulwitz v. Delta Lumber Co., supra. That the courts of Illinois recognize that the cited case of C., M. & St. P. Ry. Co. v. West, 125 Ill., 320, did not apply to facts such as we have in the case at bar, is shown by the decision of the appellate court of that state twenty-two years later, in Scott v. Peabody Coal Co., 153 Ill. App., 103, where the syllabus is as follows: "If a servant employed by a master in the driving of a coal wagon has been instructed not to permit boys to ride with him on such wagon and he violates such instructions and the boy riding upon such wagon is injured, the master is not liable."

Dissenting Opinion, per JONES, J.

In Aiken v. Holyoke Street Railway Co., 184 Mass., 269, the question of the employe's invitation was neither presented nor discussed. But following its earlier decisions upon the same questions, the supreme judicial court of Massachusetts in Walker v. Fuller, 223 Mass., 566, denied recovery where the element of invitation was present.

This case was certified to this court by the court of appeals of the sixth district, sitting by designation in Cuyahoga county, in the eighth appellate district. In certifying this case to this court the sixth appellate district declared and found in its journal entry that its judgment was in direct conflict with the judgment pronounced upon the same question by the court of appeals of the eighth appellate district in the case of Goff-Kirby Coal Co. v. Skufca (9 Ohio App., 177), decided by the latter court on May 7, 1917. That a conflict exists is beyond doubt, and it resulted from the decision of two separate courts of appeals sitting in Cuyahoga county upon substantially the same state of facts. In this case the liability of the employer was upheld, but in the Skufca case this liability was denied. By his motion, No. 9579 in this court, Skufca, the injured party, asked for certification of the record in that case to this court. His appeal was denied. Whether it was because his case was not one of great general interest, or that no error intervened, does not appear, but he was denied relief. Why he was denied is now immaterial, since in Cuyahoga county we have this situation: Upon substantially the same state of

Dissenting Opinion, per JONES, J.

facts, and in the same county, one infant plaintiff is allowed to recover, and damages denied to the other. In the case of Goff-Kirby Coal Co. v. Skufca, supra, the facts were as follows: Skufca, a boy of nine years of age, and four or five other boys, returning from school, were invited to ride by the driver of a coal wagon owned by the coal company. The boy requested the driver to permit him to alight from the wagon, but the request was refused. In attempting to alight from the wagon, and in consequence of the negligent conduct of the driver, which the plaintiff claimed was reckless and wilful, the boy was injured. In the common pleas court the boy, Skufca, recovered a judgment, which the court of appeals reversed, although wilful negligence was urged in the case, because the act of the driver was not within the scope of his employment. Certification of the case was refused by this court.

Opinion Per Curiam.

THE OHIO FUEL SUPPLY Co. v. SHILLING.

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Oil and gas-Leases — Breach of implied covenants-Damages - Failure to drill offset wells - Burden of proof - Existence of gas-Preponderance of evidence-Charge to jury.

(No. 16284-Decided February 24, 1920.)

ERROR to the Court of Appeals of Wayne county.

Mr. L. B. Denning; Mr. Freeman T. Eagleson; Mr. S. M. Douglass; Messrs. Kean & Adair and Mr. J. Warren Madden, for plaintiff in error.

Messrs. McClaran & Jones, for defendant in

error.

BY THE COURT. The defendant in error brought suit in the court of common pleas to recover damages by reason of violation of implied covenants contained in a lease for oil and gas executed to the plaintiff in error, as lessee, on December 5, 1910.

At the time of the execution and delivery of this lease the premises were wholly in undeveloped and virgin territory. The petition alleges that the lease contained a provision whereby the lessee agreed to drill a well on said premises within six months from the date of said lease, or pay the lessor forty dollars each three months, thereafter, in advance, until such well was drilled or the lease surrendered; that under the provisions of the lease the lessee had the right to surrender and did surrender the same on February 29, 1916; that from the date of its execution until its surrender the lands contained natural gas in paying quantities; that because of

Opinion Per Curiam.

their location near other lands on which there were developed "active and flowing wells, her lands became liable to and were drained to a large extent of the natural gas therein contained;" that because of the failure of the lessee to drill a sufficient number of gas wells to offset the active wells on adjoining premises, and because of the fleeting and transitory nature of the same, the gas under her premises was permitted to escape and to be drained into the gas wells on such adjoining premises. The plaintiff alleged in her petition that there arose out of said lease an implied agreement that the defendant would drill and operate such number of wells on her lands as would ordinarily be required for the protection of gas and oil contained thereunder, and as would afford ordinary protection to the lines of her said land, so as to prevent damage by reason of such drainage; that in violation of said implied agreement the lessee failed and refused to drill various wells on her said premises to protect the lines of her land and thereby offset the wells drilled on the lands adjoining thereto.

In its answer the defendant admitted the execution of the lease, and the covenants therein, as pleaded, but denied generally all other allegations contained in the petition.

Plaintiff recovered a verdict and judgment in the court of common pleas, which was affirmed by the court of appeals.

On the trial, touching the burden of proof, the court, in its general charge, charged the jury as follows: "The burden of proof is upon the plaintiff to prove the surrounding circumstances and condi

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