I accept the statement of the case as set forth in the prevailing opinion, with the following additional facts disclosed by the record:
The sale of automobiles was the primary purpose of appellants' business. To that end, salesmen were given regular training courses, with complete instructions as to the best methods of contacting the public and inducing sales. Those employees, however, who were not members of the sales force, such as Westmoreland and Lynch, one of whom was a mechanic and the other a car washer, received general instructions only as to their particular work, with the added direction to be on the lookout for prospective purchasers, but to refer all customer leads to the head of the business or else to one of the salesmen. Only Whitney and the salesmen had authority to make sales. Neither Lynch nor Westmoreland had anything to do with the sale of cars or with the demonstration of them to prospective purchasers, nor were they given any instructions or authority in those respects upon the particular occasion with which we are here concerned.
The reason why Knight, the salesman, did not contact Lynch, the driver, at the fairgrounds, is strikingly *Page 503 revealed by the record. Shortly after the arrival of the cars at their destination, Lynch met an acquaintance and went with him, in one of the cars, to a beer parlor outside the fairgrounds. During the absence of Lynch, Knight appeared at the place where the other two cars were parked and inquired for him. Learning that Lynch had taken one of the cars to go upon an errand of his own, Knight endeavored to locate him in the fairgrounds, but was unable to do so. Lynch did not return until nearly one o'clock, and, then, on being reminded by his wife of his engagement with Mrs. Ladley, immediately set out upon the trip which resulted in the fatalities. This was without the knowledge or consent of either Knight or Whitney.
The question of presumption of liability arising from appellants' ownership of the car is out of the case, since the majority assumes that the legal presumption was overcome by the testimony adduced. While I am convinced from the record that the presumption was, as a matter of fact and of law, overcome, it is unnecessary to deal with that question, inasmuch as the majority concedes it for the purpose of the argument.
The majority opinion correctly states that the ultimate question to be determined is whether Lynch, at the time of the accident, was within the scope of his employment.
The legal principles on which the majority relies are contained in the following paragraph of the opinion:
"Whether an employee, at the time the act was done for which the employer was sought to be held liable, was within the scope of his employment, depends upon whether the act had been expressly or impliedly authorized by the employer. In addition to this, the employer is liable if the act complained of was incidental to the acts expressly or impliedly authorized *Page 504 or indirectly contributed to the furtherance of the business of the employer."
No criticism can be made of the first sentence of this statement, nor of the second, provided that the "incidental" act is related to an act or acts which the employee is expressly orimpliedly authorized to perform. The concluding portion of the statement, however, reading, "or indirectly contributed to the furtherance of the business of the employer," is incorrect, if considered disjunctively, because the mere fact that an act of the employee may indirectly contribute to the furtherance of the employer's business does not, of itself alone, furnish a basis of liability, and the authorities do not so hold.
In order to render the master liable for the act of the servant, it must appear, not only that the act of the servant was in furtherance of the master's business, but also that it was within the authority conferred upon the servant.
In support of its comprehensive statement of the rule, the majority cites the following authorities: McQueen v. People'sStore Co., 97 Wash. 387, 166 P. 626; De Leon v. Doyhof FishProducts Co., 104 Wash. 337, 176 P. 355; Restatement of the Law of Agency, American Law Institute, A, p. 510; 3 Cooley on Torts (4th ed.), p. 68.
The two cases above cited are, in my opinion, an unfortunate selection; and the two texts, when carefully analyzed, do not support the application of the rule to the facts involved, as has been done in the majority opinion.
In McQueen v. People's Store Co., supra, a truck driver, employed to deliver merchandise, invited two girls to ride upon the running board of his truck. While the truck was in motion, one of the girls jumped, or was thrown, therefrom and was injured. A judgment *Page 505 for recovery of damages was, on appeal, reversed with instructions to dismiss the action. Upon the question of whether the driver was acting within the scope of his employment, this court said:
"While no decisive test can be given for determining whether or not a given act is within the scope of a servant's employment, it is apparent from all the authorities that the act complained of must have been done while the servant was engaged in doing some act under authority from his master; not that, whileengaged in the act, he is employed in the master's business; but the act must have been in the furtherance of the master's business and such as may be fairly said to have been either expressly or impliedly authorized by the master." (Italics mine.)
The act done must, of course, be "in furtherance of the master's business," but in addition to that, it must be done by authority of the master, expressed or implied. It is not for the employee to determine what will further the master's business. He is, in any event, circumscribed by the authority given him and, within that circumscription, must also act in the furtherance of his master's business.
In De Leon v. Doyhof Fish Products Co., supra, the superintendent of a cannery had charge of the general conduct of the business. Among his duties was that of maintaining discipline and quelling strikes and uprisings at the plant. He was allowed a broad discretion, and in such matters the policy of the company was intrusted to him. One of the employees was suspected of breeding strife and inciting the crew to strike. The evidence of the plaintiff in the case was to the effect that, on a particular occasion, the superintendent had summoned him and, after some verbal altercation, had falsely accused him of inciting other employees to strike, and thereupon had wantonly and maliciously struck him. The reasoning upon which the *Page 506 court arrived at an affirmance of the judgment of recovery is expressed in this language:
"When a party is sued for assault and battery by his servant upon another, liability must depend either upon proof of an express direction, or upon such facts and circumstances as will imply direction or authority, and this inference may be drawn by the jury from competent attending facts and circumstances; and if a servant is engaged in the discharge of his duties to the master and is acting for the betterment or well-being of his business, and in so doing wantonly or maliciously injures another, the master is liable to the person so injured. Having given its servant general power to maintain discipline within the bounds of his own discretion, the appellant made itself, under the elementary principles of the law, liable for an abuse of that power. The superintendent was transacting the business of the master when he called respondent to his presence, and the superintendent undoubtedly assumed that he was doing the will of his master when he talked to the respondent and called him to account for what he understood that he had been doing. His object was to promote the welfare of his master's property, and all witnesses agree that the means employed were effective, for there was no further trouble of any kind. In the performance of that which was proper and justified by the circumstances, and to serve no purpose of his own, and without any justification, as the jury has found, the servant allowed his passion to overcome him and maliciously assaulted the respondent."
In the same case, the line of demarcation between liability and non-liability in a given instance is aptly drawn in these words:
"And when a servant goes outside of his employment and wantonly inflicts an injury upon a third person to whom the master owes no duty, the servant is the principal and the employer will not be liable; but where the master has given a servant a general authority, and in the exercise of that authority the servant negligently or maliciously injures another, *Page 507 the act complained of was done in the course of his employment, and,
"`The master . . . will be deemed to have consented to and authorized the act of the servant, . . .'"
Thus, it appears that the particular act of the servant must be in the furtherance of the master's business, but, even then, it is not binding upon the master unless the servant is expressly or by implication authorized to do the act.
Converting the majority's citation of Restatement of the Law of Agency, American Law Institute, A, p. 510, into quotation, we find the following:
"An act may be incidental to an authorized act, although considered separately it is an entirely different kind of an act. To be incidental, however, it must be one which is subordinate to or pertinent to an act which the servant is employed to perform. It must be within the ultimate objective of the principal and an act which it is not unlikely that a servant might do."
At this point, it is pertinent to observe that Lynch's sole employment and authority, on the day in question, was to drive one of the cars to the fairgrounds and there await further orders. He had no authority whatever to solicit customers or to make an independent trip for that purpose. In short, he was a driver, not a salesman.
The last of the above citations made by the majority is 3 Cooley on Torts (4th ed.), § 396, p. 68. The first paragraph of the section on that page reads as follows:
"It is apparent from the foregoing discussion that, where it is established that the relation of master and servant exists between the defendant and the person whose act caused the injury complained of, the determination of the question whether the master may be held liable depends on whether the servant, at the time, was acting within the general scope of the purposes *Page 508 for which he was employed. `In determining whether a particular act was done in the course of a servant's employment, it is proper to inquire whether he was at the time serving his master. The test of liability in all cases depends upon the question whether the injury was committed by the authority of the master, expressly conferred, or fairly implied from the nature of the employment and the duties incident to it; and, in determining the question of authority, we are to regard the object, purpose, and end of the employment.'"
Again, it will be observed that, while the inquiry must consider whether the employee was at the time serving his master, the real test is whether the act was committed by authority of the master expressly conferred or fairly implied from the nature of the employment and the purpose incident to it.
The basis for holding a master liable for the torts of his servant rests upon the maxim, qui facit per alium facit per se, which underlies the principle of respondeat superior, and the universal test of the master's liability is whether there was authority, express or implied, for doing the act. In applying the rule based upon this maxim and principle, respectively, it is necessary to note the distinction between authority granted and instructions given.
"Authority, the sum total of the powers committed or permitted to the agent by the principal, may be limited in scope and such limitations are themselves a part of the authority; but instructions direct the manner of transacting the authorized business and contemplate only a private rule of guidance to the agent and are independent and distinct in character." 2 C.J.S. Agency, § 94, p. 1200.
Thus, authority is coextensive with the business or duty intrusted to the servant, while instructions have to do only with the details or manner of performing the duty. The servant may violate his instructions *Page 509 and still render his master liable, provided that the servant is engaged in what he was lawfully employed to do. But the servant cannot assume an authority which he does not have, and then in the wilful or wrongful exercise of such assumed authority render the master liable. The distinction is recognized in Loux v.Harris, 226 Mich. 315, 197 N.W. 494; and Luckett v. Reighard,248 Pa. 24, 93 A. 773, Ann. Cas. 1916A, 662, both of which cases are relied on in the prevailing opinion.
The fallacy of the reasoning of the majority is, in my opinion, in assuming that, when Lynch left the fairgrounds, without the knowledge or consent of his superior, to go back to Elma and get Mrs. Ladley, who was related to him by marriage and who, he thought, might be a prospective customer, he was thereby engaged in something that was incidental to the acts which he was authorized or employed to perform and which would indirectly contribute to the furtherance of the master's business.
On this particular occasion, Lynch was employed only to drive the car to the fairgrounds and subsequently in the parade. He had no authority whatever to make trips for the solicitation of prospective customers or to deliver customers bodily to the appellants or one of their salesmen, or, much less, to invite them to ride in a parade which was for a demonstration to the general public only. His trip to Elma was in no sense incidental to the duties that he was authorized and required to perform. His duties required him to remain in the fairgrounds, not to leave them. Mrs. Ladley's presence in the parade was neither contemplated nor authorized by the appellants, and the act of Lynch in going after her disrupted entirely the purposes for which the cars were lent, as the results so disastrously proved. *Page 510
This is a case where an employee, intrusted with the property of his employer to be used for a single purpose, in a definitely described way, has gone wholly outside of the scope of his employment, upon a mission that he was not authorized or expected to perform, without the knowledge or consent of his employer, and through his own negligence has injured others. In such a case, the employer should not, in my opinion, be held liable.
I therefore dissent.
TOLMAN and BEALS, JJ., concur with STEINERT, C.J.