Of course it is the law that a master is not responsible for the negligence of his servant when the negligent act is committed by the servant while he is engaged in his own business, not connected with that of the master’s, or when he is using an instrumentality belonging to the master contrary to the master’s orders.
To my mind the element of consent to the use of the instrumen-. tality is important and controlling in the present case. It had been the habit of the defendant to allow his chauffeur to use the automobile to go to his meals, presumably to save time and expense. On the night in. question the chauffeur had takén the defendant to his apartments. It was a part of his remaining duty to take the *589machine to the garage, for it could not be left in the street or kept in an apartment house. The chauffeur requested permission to deviate from the direct route to the garage folgo uptown on some business for himself. The defendant told him that he might do that, “ but to hurry back, only be gone a short while, come right back.” The testimony of the chauffeur is to the same effect, hut a little more specific in that he says the defendant told him to-be careful and if anything happened to be sure and notify the defendant at once. The chauffeur was still in the pay of the defendant and his duty was to properly pare for the machine and to properly house it for the night. Even while he was gone on business of his own this duty remained with him and he was being paid for the performance off that duty by the defendant. It does not seem to me that the chauffeur was emancipated during the trip notwithstanding it was for his own pleasure. ' ■
I concede that if the chauffeur had taken the.machine without the consent of the master and contrary to his orders his act would then have been entirely outside the scope of his employment. In not one of the cases referred to in the prevailing opinion did the master consent to the use of the instrumentality which the servant was employing when the accident occurred, except in the case of Bard v. Yohn (26 Penn. St. 482) where there was evidence that a father consented that his son, who was his servant, might take a team for his own purposes. The father denied giving the consent and in the course of its opinion the court remarked that it did not matter whether consent was given or not. In all the other cases it was a question whether the relation of master and servant actually existed, or whether the servant had acted without consent and contrary to orders.
In the present case the relation of master and servant is admitted, .and the taking of the instrumentality by which the accident was caused was with the express consent of the master and it was a part of the duty of the servant to care for the vei’y instrumentality which produced the injury.
The question was presented in Rounds v. Delaware, Lackawanna & Western R. R. Co. (64 N. Y. 129) whether or not the master was liable where the servant .abused his authority and was reckless in the performance of his duty and inflicted unnecessary *590injury., and the court laid down the proposition that “ to make a master liable for the wrongful act .of a servant to the injury of a third person it is not necessary to show that he expressly authorized the particular act, it is sufficient to show that the servant was-engaged at the time in doing his master’s business and was acting within the. general scope of his authority.”
In Quinn v. Power (87 N. Y. 535) a ferry boat captain deviated from his course without compensation to permit a boatman to embark on a passing canal boat tow in the Hudson river and it was held that although the master gave no consent .and-.had no knowledge of the deviation the servant was. still engaged in the master’s business.
A driver of a truck deviated from his-return course to his master’s brewery to visit a friend; and leaving his horses unattended they started and were stopped by a stranger who in attempting to drive them back to .the place where the driver left them caused injury to a person in the street, and it ivas held in Williams v. Koehler & Co. (41 App. Div. 426) that the master was liable for the negligent act of the stranger because the negligence of the driver in leaving the team unattended was the proximate cause of the accident.
In the case at bar it was the duty of the chauffeur to. return the machine to its garage. The accident to the plaintiff happened while the chauffeur was returning from the place he had visited to the garage. '.
While a. powerful automobile may not, strictly speaking, be deemed a dangerous instrument, it may become go' if recklessly driven. They are so dangerous that the Legislature has prescribed that their'ownership must be registered and the driver licensed, and that speed in different localities must be regulated. (Motor Vehicle Law, Laws of 1904, chap. 538.) The defendant recognized this when he instructed his servant to be careful on the trip which he permitted him to make. If a railroad official should loan a locomotive to one of the company’s engineers for the purpose of hurriedly visiting a distant locality, it could hardly be. said that the engineer alone would be liable for injuries inflicted upon third persons.
I appreciate that the case is on the border line, but it seems to me that the chauffeur was engaged in the business of the master and deviated from the direct course to house the machine by the master’s express consent, and that, therefore, the relation of master and *591servant still continued, and that the court was justified in refusing to charge as requested, Or, under the proofs, to submit to the jury the question as to whether or not that relation had been severed.
I, therefore, vote for an affirmance of the judgment.
McLaughlin, J., concurred.
Judgment and order reversed and new trial ordered, costs' -to appellant to abide event.