ON MOTION FOR REHEARING. OPINION FILED FEBRUARY 23, 1924. Respondent's counsel insistently urges upon our attention a number of cases not cited in his original brief. These cases had not escaped our attention. They are, we think, clearly distinguishable on their facts from the case at bar. If, however, they may be regarded as supporting counsel's view, they are out of accord with the decisions in this State and the great weight of authority elsewhere. Counsel especially presses upon our attention Riley v. Standard Oil Co., 231 N.Y. 301, which on its facts is more nearly on all fours with the instant case than any other case cited by respondent's counsel. That case was decided by a divided court. The prevailing opinion was concurred in by four judges. A strong and well reasoned dissenting opinion was concurred in by three judges including the Chief *Page 150 Justice. The court in arriving at its conclusion as set forth in the prevailing opinion, not only ran counter to the views of three of its own members, but reversed the unanimous judgment of the Appellate Division. The prevailing opinion, therefore, cannot be regarded as persuasive authority for the view of respondent's counsel in this case.
As to Heelan v. Guggenheim, 210 Ill. App. 1; Bila v. Bloomingdale; 184 A.D. 65; McKiernan v. Lehmaier,85 Conn. 111, and Graham v. Henderson, 254 Pa. 137, cited by respondent's counsel, in each of these cases the master had given his express consent to his servant to go to a designated place on a mission of his own, with an express or implied direction to go from such designated place on an errand for the master, and while on such errand for the master the injury sued for occurred.
Counsel further insists that our opinion is in conflict with the opinion of the Kansas City Court of Appeals in Vanneman v. Walker Laundry Co., 166 Mo. App. 685, l.c. 692, 150 S.W. 1128. In that case the injury sued for was inflicted by the negligence of defendant's servant engaged in driving defendant's laundry wagon. The duties of the driver were to go about the city in the laundry wagon receiving and delivering laundry. The facts are not set forth in detail. It is not shown that the driver, in visiting his sick friend, departed at all from the route where his duties required him to be, but the evidence does show, and the opinion expressly affirms, that at the time of the accident the driver had "started on his business route."
It is not the law of this State that the master is responsible for the tortious act of his servant merely because such tortious act was committed in the use of an instrumentality or appliance furnished by the master. It has been ruled by our Supreme Court in the most positive and emphatic terms that, where the undisputed facts disclose that the tortious act of the servant was not committed in the execution of the master's business *Page 151 within the scope of his employment, the master is not liable, and that the court must so declare as a matter of law. We have neither the right nor the disposition to rule otherwise.
The Commissioner, therefore, recommends that the respondent's motion for rehearing be overruled.