There is no claim that the defendant employed an incompetent or careless chauffeur or that he had a defective car. The accident came about solely from the fact that the wife, without the knowledge of the husband, directed his chauffeur to go for a doctor to administer relief to the woman found suffering upon the highway. In the Cowell case, cited by the presiding justice, the chauffeur was acting under the direction of the owner of the car and in. furtherance of the purposes of the owner to accommodate and assist Senator Brown in his canvass. The chauffeur there was as much engaged in the owner’s business as if he had been driving her for pleasure. In the case at bar the defendant did not know of the injured woman and had no part in sending for the doctor. That was an act of humanity, not done for the wife’s pleasure or in the interest of the family, or in the husband’s business or for his purposes. The distressing circumstances compelled the act. The ordinary instincts of humanity in the woman and not the act or volition of the wife directed it. Perhaps any chauffeur, in the absence of the master or the master’s wife, who found a person suffering as this woman was suffering at the roadside, at the suggestion of any bystander or of his own initiative, would have used the car in going for the doctor. In such a case the owner could not be liable. It is immaterial that the humane instinct of the wife rather than that of another suggested that the chauffeur bring the doctor. She was not using the car or giving the order as the representative of her husband. It is carrying the rule of respondeat superior too far to make the defendant liable under the circumstances of this case.
I favor a reversal.
Judgment and order affirmed, with costs.