If I correctly understand the majority opinion it is there held that the accident in question resulted from the negligence of the defendant Anderson, and that the defendant Anderson was an employee of the defendant Singer Sewing Machine Company and not an independent contractor. And, if I am not completely in error, "The master's liability is an issue to be decided by the jury or other trier of facts whenever there is a conflict of testimony regarding those facts or more than one inference may reasonably be drawn from them." (6 Labatt on Master Servant, 2d ed., sec. 2275; Scrivner v. Boise Payette LumberCo., 46 Idaho 334, 268 P. 10; 39 C. J. 1362, sec. 1593; 2 Blashfield Cyc. of Automobile Law, 1792.)
An examination of the record will disclose that Anderson left his home on the tenth day of January for the purpose of soliciting sales of sewing-machines and the making of collections on behalf of the defendant company; that he went first to Eagle pursuant to that purpose and there formed the intention of going to Nampa to make a particular collection for the company; that while in Nampa he did make the particular collection and did solicit a number of prospective purchasers of sewing-machines and did transact some private business; that he returned to Boise at some time between 6 and 7 o'clock of the evening of January 12th; that he parked his car near the office of the company where he went as a matter of curiosity and not for the purpose of transacting any business or making any settlement *Page 240 whatever; that he went from the office of the company to an eating-house for his evening meal; that from the eating-house he went on foot to the postoffice and perhaps to the "Capital News" building, from whence he returned to and entered his car and then proceeded to drive his car by the most direct route to his residence at which place he kept said car and from whence he had begun his trip on behalf of the company and for the sole purpose of completing said trip.
The reaction of the majority to these facts seems to be stated in the following sentence: "Finding none of the office force there, he evidently considered the day's work done and busied himself no further about the company's business whatever." I have searched in vain in the record for anything upon which the statement "he evidently considered the day's work done," is based, and, in my opinion, no such basis for it can be found. The majority further say: "After reaching Boise, had he continued homeward, it might be said that he was concluding a trip made in his employer's business, but he terminated his trip at his own option when "he went to the company's office, choosing to go home when in the fullness of time it pleased him." By what authority can it be said "he terminated his trip?" Of course, if that be true, the majority opinion is correct; but that, in my judgment, was a question for the jury to determine from the evidence and that evidence was such that different conclusions might reasonably be drawn therefrom. And the jury having evidently determined, under proper instructions, that the defendant Anderson had not terminated his trip but was still engaged in his master's business, it is not for this court to say the jury drew an incorrect inference. That is not the question. The question is, Could the jury reasonably draw the inference which it did draw?
It is suggested by the majority that it was none of the company's business whether defendant Anderson made a night of it at the talkies and in the noodle joints. The reply *Page 241 to that is legion, but for the purposes of this dissent it is only necessary to observe that the defendant Anderson did not so conduct himself and had he done so the accident would not have occurred.
I believe the true rule and guide for the solution of the question is found in the language of the court in the case ofSharp v. Erie R. R. Co., 184 N.Y. 100, 6 Ann. Cas. 250, 76 N.E. 923, 924, wherein it is said:
"Whether the person whose immediate negligence or misconduct caused the particular injury, was acting at the time as the servant of the person sought to be charged frequently depends on such a variety of facts that it falls outside of any definite rule, and for that reason becomes, under proper instructions, a question of fact for the jury.
"It is obvious that there is no rule or principle of law to determine such a question, and hence it belonged to the jury."
The jury having decided the questions of fact in this case under proper instructions, the findings of the jury should not be disturbed on appeal and the judgment appealed from should be affirmed.