The whole case considered, I see no escape from the conclusion that at the time of the accident Smuda was beyond the scope of his employment. Plaintiff should have known it, but whether she did or not can make no difference in the legal result. However things may have appeared to plaintiff at any stage of the evening's festivities, the decisive question remains — whether Smuda was within the scope of his employment at the time of the accident. I think there can be only a negative answer.
It is not even suggested that at the decisive moment her taxicab was in fact being used for the benefit of its owner, defendant Siegel. Confessedly it was not but was devoted wholly to the uses of plaintiff, Smuda and other members of the "party." The owner had not authorized nor appeared to authorize its use by them. In such circumstances, how the owner can be made to respond in damages for an injury arising solely from the unauthorized and wrongful use of the car to one who participated in that use is beyond me. I agree that there was error in the charge, as indicated by Mr. Justice Holt. *Page 336