ON PETITION FOR REHEARING. The appellee urges in his petition for rehearing that in the original opinion this court failed to take note of one of the theories upon which his complaint was predicated and that if this had been done the evidence would have been found ample to sustain the verdict. It is contended that the complaint and proof were sufficient under City of Indianapolis v. Lee (1921),76 Ind. App. 506, 132 N.E. 605, upon which the appellee's tendered instruction No. 3 was based. The appellee relies heavily upon the following statement found in the Lee case (p. 510):
"It is generally held that where a servant, without express or implied authority from the master, suffers or permits a stranger to do, or to assist in doing, the work which the master entrusted to the *Page 613 servant, the master is liable under the rule of respondeat superior for an injury to a third person inflicted through the tortious acts of the stranger."
The above case involved the liability of a municipal corporation for the negligence of one of its servants whose duty it was to operate a motor vehicle belonging to the city. The servant permitted another to operate the vehicle and as a consequence an injury was inflicted. The city was held liable — not for the negligence of the operator — but for the negligence of the servant in violating an express order not to allow the vehicle to be used by others. Considered in the light of the facts to which it relates, we do not deem the rule quoted improper, but it is not applicable to the case at bar. See, I Restatement of the Law of Agency, § 241, and Indiana annotations thereto; also, 12 Notre Dame Lawyer 188.
In the instant case no instrumentality under the control of the appellant was involved and it was undisputed that Mace had finished his work for the day. It is true that Mace 6, 7. testified that at the time the accident occurred his sole and only purpose was to take Tucker to his destination and that Tucker was engaged on company business. This evidence is entirely consistent with the fact that the act of Mace in taking Tucker to the downtown office and fish market was purely an accommodation, wholly disassociated from the work Mace was employed or directed to do, but it would not authorize an inference that at the time of the accident he was acting within the scope of his employment as a servant of the appellant. While it is the duty of the reviewing court to indulge all reasonable inferences which the trior of facts is entitled to draw to sustain the finding or verdict, this does not authorize us to ignore the undisputed facts or to enter into the field of supposition and guesswork. *Page 614
No support for the appellee's contention is found in VincennesPacking Corporation v. Trosper (1940), 108 Ind. App. 7,23 N.E.2d 624, or Great American Tea Co. v. Van Buren, ante, p. 462, 33 N.E.2d 580, relied on by the appellee. The former case involved the negligent conduct of a servant in the use of a team and wagon furnished by the master. The jury found for the plaintiff and it was held that there was evidence that the servant was acting within the scope of his employment, notwithstanding that on the day of the accident he began work shortly before his usual time, departed from his customary route of travel, and performed his duties in a manner calculated to serve his own interests as well as those of his master. The last-mentioned case likewise involved a master's liability for the act of a servant, the principal controversy there being whether the employment had terminated prior to the accident. It was held that this presented a question of fact, about which there was conflicting evidence, and the jury found specially that the relationship existed.
The petition for rehearing is denied.
NOTE. — Reported in 34 N.E.2d 927.