If the jury believed all the testimony of the witness Perkins, which they would have to do unless he was impeached, they would have had to find that the deviation was not slight, but an entirely distinct, separate, and unauthorized mission, under which there could be no liability on the part of the employer. Assuming for the sake of argument that the plaintiff could impeach his own witness under the circumstances of this case, to wit, by beginning the direct examination by refreshing the witness's recollection by reading his answers to depositions to him, and by being "surprised" at his testimony, and not claiming entrapment — if the jury disbelieved the testimony of the witness Perkins to the effect that at the time of the injury he was not on his way to take Yon home, there is no evidence as to where the witness was going or why. If the remainder of the witness's testimony was accepted we have him going to Lee's house to put the jeep up and coming back to town to bring Beach, to get some lard and to see about Proctor's check. If the entirety of the witness's testimony was rejected, we have the permissible inferences only that Perkins brought the crew to town, that the witness injured the plaintiff on his way to McPherson's store or going in that direction while alone in the jeep, and that Yon went home on a bus.
The rule in such cases as this is, that the master is liable when injuries are inflicted by a servant while acting in the scope of his employment and in the prosecution of the master's business, and that, if the servant deviates slightly, the master is still liable if the deviation is so closely connected with the business that, though the servant may derive some benefit from it, it may nevertheless fairly be regarded as within the course of the employment (Causey v. Swift Company, 57 Ga. App. 604,196 S.E. 228); or, as the rule is stated in the Restatement of the Law of Agency, § 234: "One may be a servant, although a bad servant, in performing his master's business at a forbidden place if the place is within the general territory in which the servant is employed. One engaged to drive an automobile in New York City would not be in the service while driving in Albany; but a *Page 520 servant directed to drive from New York to Albany on the west side of the Hudson would not cease to be acting within the scope of the employment while driving on the east side. In all cases, it is a question of degree whether or not the difference in place is so great as to make the act done substantially different from the act authorized. If the driving is an independent journey as distinguished from a mere detour, the servant is upon an enterprise of his own and the master is not liable for his conduct during the trip. . . Where the area within which the servant is to act is very limited, a slight departure from it may be effective to remove the act from the scope of employment although, if the employment covered a larger area, a greater departure would not." In this case, the jury could not find a verdict on the presumption that the servant was proved to be the employee of the defendant and was driving the vehicle, for the reason that specific authority for the one mission was relied on, and shows for itself the circumstances of its applicability, and no enlargement of the authority is shown from custom or practice, and the defendant also rebutted any other authority. The burden in this case was on the plaintiff to show that the injury occurred while Mr. Yon was being carried home, and that, if there was a deviation, it was so closely connected with the mission that the defendant would still be liable. In this case, under no theory does it appear that the injury occurred while the authorized mission was being carried out or that the deviation, if such it was, was connected in any way with the authorized mission.
The declaration of the alleged agent dum fervet opus immediately after the injury is not by itself evidence of the fact that Perkins was acting as agent at the time of the injury. It could only have efficacy as corroboration of a prima facie case of agency already made. Akridge v. Atlanta Journal,56 Ga. App. 812 (194 S.E. 590), and cit. In this case, there is no prima facie evidence that Perkins was on an authorized mission at the time of the injury, and therefore the statement that he was on his way to take Mr. Yon home is insufficient to establish the fact embodied in the statement.
In my opinion the court has misconstrued the ruling in DawsonMotor Co. v. I XXX supra, and cases cited. The basis for the holding in the cases referred to is the ruling in Fielder v. *Page 521 Davison, 139 Ga. 509 (77 S.E. 618). In that case the court cited Long v. Nute, 123 Mo. App. 204, 209, 210 (100 S.W. 511), which stated: "Where a servant, who is employed for the special purpose of operating an automobile for the master, is found operating it in the usual manner such machines are operated, the presumption naturally arises that he is running the machine in the master's service." The other cases cited in the Petty case are based on similar facts. Before an inference is authorized that a servant is driving a vehicle at any particular time in the service of his master, it must first appear that the driver is a servant of the master, and that his employment contemplates thedriving of the vehicle generally, in the absence of proof to the contrary. The rule does not mean that, if a yard man drives a car belonging to his master, an inference is authorized that he is driving it on authorized business of his employer. To give the rule any such application robs the owner of the right to have a prima facie case made against him, and in a case like this makes it most difficult for an employer to defend. The employer here showed a specific employment. He did not know on what mission his servant was engaged when the accident occurred, and a verdict against him can be based only on an unauthorized assumption that, because he was authorized to carry Mr. Yon to Carnegie, he was engaged in that undertaking under the facts of this case, when there is not an iota of evidence that he was so engaged and no facts from which such a fact could logically be inferred. I do not think that the evidence authorized the verdict.