dissenting:
The plaintiff’s witnesses testified to declarations made by the defendant and by Yolz in his presence; immédi*82ately after the accident, to the effect that Volz was the defendant’s chauffeur, that the defendant was the owner of the car, and that the latter was not in it at the time of the accident. He did not then disclaim liability upon the ground that Volz was not acting for him at the time of the accident, nor did he contradict, qualify or explain' the statement Volz is alleged to have made in his presence that “he had been taking Mr. Shaw home and after he took him home he told him to go back for his family.” The accident occurred after he had taken his family in the car and while he was on his way to his home and the garage which were on the same premises. If the case had rested here, the question as to whether Volz was at the time acting within the scope of his employment would have been for the jury. It would have been the province of the jury to determine what Volz said, and the meaning of what he said: Maynes v. Atwater, 88 Pa. 496. Nor did the question whether Volz was acting by direction of the defendant or was a mere bailee become a pure question of law for the court, when Volz, as a witness for the defendant, testified that after he left the defendant at his home he asked “permission” to use the car to bring his family home. In view of the admission or declaration alleged to have been made at the time of the accident, it was not the province of the court to declare that the version he gave on the witness stand must be taken as verity. The principle seems to me applicable that where the plaintiff has made out a prima facie case which he was entitled to have submitted to the jury, the case is none the less for the jury because the defendant adduced oral testimony which, if believed by the jury, would warrant or require them to find against the plaintiff.
Granting, however, that the words of the defendant were permissive, rather than directory, it does not necessarily follow that binding directions should have been given for the defendant. When the chauffeur left the defendant at his home, the former would still have been *83acting within the scope of his employment in taking the car to the garage. If the defendant permitted him to go a longer way round in order to pick up his family on the way, was he not acting within the scope of his employment in going to the garage after picking up his family? I am inclined to the opinion that under all the evidence a finding by the jury that at the time of the accident he was acting not only for himself, but for the defendant, would have been warranted. Therefore I am unable to concur in the judgment.
Judge Orlady authorizes me to say that he concurs in the foregoing dissent.