(dissenting). The majority here propose to reverse the judgment rendered against the appellant Employers’ Liability Assurance Corporation, Ltd., upon a jury’s verdict and to dismiss the complaint as to such appellant. In our consideration of the case we start with a prima facie cause of action against the insurance company based upon its ownership of the car, which even direct contradictory evidence will not destroy but will create a question of fact for the jury. (Ferris v. Sterling, 214 N. Y. 249.) How then may the complaint be dismissed as to this appellant? We are told that the entire evidence shows that White, the deceased employee and driver, was not engaged in his employment for the defendant at the time of the accident. There is no direct evidence to support this holding. Practically all there is here to contradict the prima facie case is the inherent improbability of an adjuster being engaged on company business at two o’clock in the morning following an evening of diversion. White’s immediate superior testified that neither he nor any one else in the company knew whether White was on company business when the accident happened, that an adjuster’s hours were when his work was finished and that this might be at two o’clock in the morning if necessary. It was conceded that White had been on pleasure bent during the early evening. But the fatal journey was not to another place of entertainment. Rather it was to a private home where White went in alone while his companion Berry stayed in the car. More important still, the employer, which knew the business necessities of the trip and cases which White was then working on, failed to show those necessities and cases or that no such side trip was required. On a prior occasion when Berry had gone on a business trip with White, the latter called on a doctor late at night so that White’s employment sometimes necessitated late hours and such nocturnal visits were not uncommon. The defense is far too weak to warrant a conclusion as a matter of law that White was acting outside the scope of his employment.
*431There was also proof here of frequent deviations by this company’s employees from the strict rule as printed on the weekly expense report, all with the knowledge and tacit approval of the company. “ Deviation by an employee from the strict line of his employer’s business or from his directions may not put the employee’s act outside of the scope of his employment; so deviation even from the terms of permission to use the car might conceivably be insufficient, of its own force, to terminate the permission and render the use of the car illegal.” (Lehman, J. in Chaika v. Vandenberg, 252 N. Y. 101, 106.) The presumption which flows from ownership disappears only where upon all the evidence it appears that no permission to use the car was given (St. Andrassy v. Mooney, 262 N. Y. 368), and it surely was not shown here that permission to use the car on this particular trip had not been given.
Plaintiff’s case does not rest solely upon ownership of the car by the defendant employer. White was also the agent and employee of the owner. The owner had given him complete possession and control of the car, coupled with its consent to operate it at all times both day and night, week days and Sundays. This northern trip was on company business and White’s horns of employment and use of the car unlimited. To all intents and purposes he was, while on this trip, furthering his employer’s interests from the time he left home until he returned. If he converted the car to his own uses he was guilty of larceny and we must presume the contrary. Here was proof far beyond mere ownership alone and with little evidence to contradict it. The charge fairly submitted the question of consent to the jury which made a finding against the appellant insurance company. The verdict should not be disturbed and least of all may it properly be said that there was not even a question of fact in the case.
Motion made by the defendant, The Employers’ Liability Assurance Corporation, Ltd., at the end of the case, for the dismissal of the complaint, granted. Order and judgment appealed from reversed, on the law and facts as against The Employers’ Liability Assurance Corporation, Ltd., and the complaint dismissed as against it, with costs.
Judgment against Delia F. White, as administratrix, etc., of John T. White, deceased, affirmed, with costs.