I dissent in this case. The peremptory instruction requested by the appellant should have been granted by the court below.
Stewart, the employee who drove the automobile negligently and caused the injury to Quick, had abandoned the master's business at the time of the injury, and was using the automobile in violation of his contract with the master. The automobile belonged to the master, and *Page 460 he was using it, not for any purpose of the master, but for his own private purpose — to procure his lunch. The right of contract still exists in this state; parties sui juris may make their own contracts so long as they do not violate any statute or public policy of this state, neither of which is involved here. Stewart was entitled to one hour for his lunch; the record shows that that was ample time for him to go to his home and to return to duty to relieve Johnson, his immediate superior. The use of the automobile was for his own convenience. The master was under no duty to furnish him with lunch or to provide him with transportation to his home for lunch. The servant had the option to pay his fare to a taxicab, to use his own automobile, or to walk. Some may think that it is a hardship on a servant in this day to walk. The so-called rule was in fact a contract by which the master stipulated that it did not furnish transportation by the use of its automobile, for the purpose of going to and from meals. From the moment that Stewart started the car in motion toward his home and away from the employment of his master he was not slightly deviating or detouring, he was engaging in purposes and business of his own wholly and entirely disconnected from the business of the master. He was not on duty.
The presumption of fact from the use of the master's instrumentality was dissipated and overthrown by the testimony of Stewart. Being unchallenged, the appellant was not called upon to introduce cumulative evidence. The contract as to Stewart going to his meals, and as to his having one hour for lunch, was thoroughly and fully established, and therefore the case could not be submitted to the jury on a mere presumption which always yields to the evidence establishing the converse.
In Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 28 So. 823, 84 Am. St. Rep. 620, this court approved the following language: "An act done by a servant while engaged in his master's work, but not done as a means, or for the purpose, of performing that work, is not *Page 461 the master's act." The court there further said: "The inquiry is not whether the act in question, in any case, was done, so far as time is concerned, while the servant was engaged in the master's business, nor as to mode or manner of doing it, — whether in doing the act he uses the appliances of the master, — but whether, from the nature of the act itself as actually done, it was an act done in the master's business, or wholly disconnected therefrom by the servant, not as servant, but as an individual on his own account."
In Barmore v. Vicksburg, S. P.R. Co., 85 Miss. 426, 38 So. 210, 70 L.R.A. 627, 3 Ann. Cas. 594, this court specifically decided that, at the moment of the injury, Watson, the servant, was engaged in going to the place where service for the master was to be performed by him. The court found in that case the following facts: Watson was operating the appliance which it was his duty to operate. He was on the track at a place which he was compelled to pass over, and was proceeding to the place where his duty called, for the purpose of performing that duty, and at the time of the injury he was engaged about no affair of his own but was discharging in the usual and customary manner the business for which he was employed. Under such circumstances, the master is answerable for the tort of the servant. The court further held in that case that the tricycle being operated by Watson was a dangerous instrumentality per se, while this court held in the case of Vicksburg Gas Co. v. Ferguson, 140 Miss. 543,106 So. 258, that an automobile propelled on the public highways of this state was not a dangerous instrumentality per se. So that I think the conclusion reached in the Barmore case, and the principle there announced, applied here, would justify the holding in the case at bar that the servant had not made a mere detour, but was engaged at the time on business of his own and not that of the master. The servant there was on duty.
The rule which I think obtains and should be adopted by this court is found in 42 C.J., p. 1108, section 868: *Page 462
"The use by the chauffeur of the owner's vehicle for the purpose of going to and from his place of employment is a use for the purposes of the chauffeur, and the owner is not liable for an injury occasioned while it is being so used, either without his knowledge or consent or with his permission, as, for example, where he is going to or returning from a meal. The owner may, however, be liable where under the circumstances the chauffeur's use of the vehicle may be regarded as also for the owner's purposes, as where it enables the chauffeur to arrive earlier at his work, or shortens the time which he is required to have to procure his meals." The notes disclose a great array of authorities as sustaining this proposition.
I have quoted this section in full, and with reference to the latter part, as to arriving earlier at his work, in this case the master clearly had no concern therewith. The hour allowed to the servant for getting his meals is shown by the evidence to have been ample time, and Johnson, who was at the "board," was concerned as a servant for another servant to relieve him, and not the master. The master's business was being cared for, and it is a strained construction to say in the case at bar that the master was benefited by the servant's use of the automobile. The same strained construction could be placed on almost any private use to which the servant would put the master's appliances. He might go to the swimming pool, to the gymnasium, or to the grocery store, and it might be argued with plausibility that all of it would result in some remote manner to the master's interest.
The controlling fact and the all-powerful question which stands out in all of these cases above everything else consists of the employee's use of the car solely for the purpose of enabling him to obtain his noonday meal. There is no liability of the master. See Bloom v. Krueger, 182 Wis. 29, 195 N.W. 851; Steffen v. McNaughton, 142 Wis. 49, 124 N.W. 1016, 26 L.R.A. (N.S.) 382, 19 *Page 463 Ann. Cas. 1227; Gewanski v. Ellsworth, 166 Wis. 250, 164 N.W. 996; Hartnett v. Gryzmish, 218 Mass. 258, 105 N.E. 988; Hays v. Hogan, 273 Mo. 1, 200 S.W. 286, L.R.A. 1918C, 715, Ann. Cas. 1918E, 1127; Wilson v. Quick-Tire Service, 32 Ga. App. 310, 123 S.E. 733; Danforth v. Fisher, 75 N.H. 111, 71 A. 535, 21 L.R.A. (N.S.) 93, 139 Am. St. Rep. 670; Bursch v. Greenough Bros. Co.,79 Wash. 109, 139 P. 870; Reilly v. Connable, 214 N.Y. 586,108 N.E. 853, L.R.A. 1916A, 954, Ann. Cas. 1916A, 656; Glassman v. Harry, 182 Mo. App. 304, 170 S.W. 403; Kish v. California State Automobile Association, 190 Cal. 246, 212 P. 27; Orr v. Thompson Coal Co., 219 Ill. App. 116; Hill v. Decatur Ice Coal Co., 219 Ala. 380, 122 So. 338. To the same effect is Berry on Automobiles (6th Ed.), sec. 1375, p. 1139, and also 2 Blashfield's Cyclopedia of Automobile Law, p. 1414, and authorities there cited.
Of all the cases I have read I could cite many more, but I think the above are sufficient.
The case of Bryan v. Bunis, 208 A.D. 389, 203 N.Y. Supp. 634, so freely quoted from in the main opinion, was decided on a New York statute, which is made clear in the opinion.
The length of time intervening after the servant has left the master's employment is of no consequence. 42 C.J. 1110, sec. 869.
In conclusion, the test here is — suppose, on this occasion Stewart had used his own automobile, would there have been any liablity on the part of the master? Certainly not. Suppose, under the same circumstances, he had ridden a bicycle, or had walked and had blindly stepped upon a small child and negligently caused it to be injured, would there be liability on the part of the master? Certainly not. I think there is no liability here, and that too much emphasis is placed upon the instrumentality and not enough upon the contract of employment by the main opinion. *Page 464