dissenting. (After stating the foregoing facts.) The majority of this court hold that the petition set out a cause of action, and that the judge properly overruled the general demurrer. *615In the opinion of the writer, the petition, properly construed (most strongly against the plaintiff), shows that at the time of the accident in which the husband of plaintiff was killed the defendant’s truck, in which he was riding, and which was driven by a servant of the defendant, was not being operated in the prosecution and within the scope of the defendant’s business; and that, under the law of master and servant, the defendant was not liable. Counsel for the defendant in error admit in their brief that the allegations of the petition show that the husband of the plaintiff at the time of the accident, which was on a Sunday, was engaged in a transaction that “did not facilitate the business of the master;” and the petition also shows that the driver of the truck, while engaged in the same transaction, was not acting in the prosecution and within the scope of his master’s business; and the petition fails to allege that the injury was done by the defendant’s command. It follows that the master (the plaintiff in error in this case) was not liable (Civil Code (1910), § 4413), and that the court erred in overruling the general demurrer to the petition.
Judgment affirmed.
MacIntyre and Guerry,JJ., concur. Broyles, C. J., dissents.