I am unable to concur in the opinion of Judge CARDOZO that the judgment of the Appellate Division should be reversed and that of the trial court affirmed. On the contrary, I am of the opinion that the judgment should be affirmed. The sole question presented is whether Guenther, who was in the employ of the defendant as a demonstrator of its cars and who was driving one of its cars at the time of the accident, was at that time acting within the scope of his employment and in the discharge of the defendant's business.
The facts immediately surrounding the accident are as follows: The defendant had in its employ as a general salesman one Pratt who lived about a mile and a half from its factory. His health was somewhat impaired and by reason of that fact he at times with the knowledge, not by the direction or with the consent, of the defendant used one of its cars to take him to his residence and in the morning back to the defendant's factory. Shortly prior to the accident Guenther was told by Pratt to drive him to his residence which Guenther did. Pratt left the car and told Guenther to take Mrs. Pratt's seamstress to her place of abode which was upwards of five miles away. Guenther started on the journey as directed and after proceeding a short distance the accident occurred. On the route over which Guenther had to drive to reach the abode of the seamstress, and a mile or more nearer Pratt's residence, defendant had a repair shop. In this shop demonstrators of cars, who lived in that vicinity and who had taken Pratt to his residence and had been directed to call for him the following morning, at times stored cars during the night. Such storage was done without the direction or knowledge of the defendant. Guenther testified that he intended, after he had taken *Page 277 the seamstress to her abode, to return to this shop and leave the car there during the night, and on the following morning to drive it to Pratt's residence and take him to the defendant's factory. Pratt was not an officer of the defendant. The uncontradicted evidence is that he had no authority to direct that the car be used for the purpose of taking the seamstress to her place of abode and Guenther had no authority to store the car in such shop that night. I am unable to see under such circumstances how there were any facts justifying a finding that at the time of the accident Guenther was acting in the scope of his employment or doing anything in the interest of the defendant. He was not authorized to make the journey, nor was he authorized to store the car in such shop. The question is properly raised by an exception to the charge and a refusal to charge. The following authorities it seems to me sustain the view that the defendant is not liable: Reilly v. Connable (214 N.Y. 586); Schoenherr v. Hartfield (172 App. Div. 294); Hartnett v. Gryzmish (218 Mass. 258); Danforth v. Fisher (75 N.H. 111); Colwell v.Etna Bottle Stopper Co. (33 R.I. 531); Steffen v.McNaughton (142 Wis. 49); Patterson v. Kates (152 Fed. Rep. 481); Lotz v. Hanlon (217 Penn. St. 339); Doran v.Thomsen (76 N.J.L. 754); Maddox v. Brown (71 Me. 432);Fiske v. Enders (73 Conn. 338); Slater v. Advance ThresherCo. (97 Minn. 305); Rayner v. Mitchell (L.R. 2 C.P. Div. 357).
The fact that the defendant had the repair shop on the route is of no importance since it played no part in the object of the journey and besides the driver of the car so far as appears had no authority from the defendant to store it in such a place.
The judgment should be affirmed, with costs.
HISCOCK, Ch. J., POUND, CRANE and ANDREWS, JJ., concur with CARDOZO, J.; CHASE, J., concurs with McLAUGHLIN, J.,
Judgment reversed, etc. *Page 278