Tbe appellant stresses for error these assignments :
1. Tbe refusal of tbe court below to grant (a) bis motion for judgment as of nonsuit made in apt time as required by statute, C. S., 567, and (b) bis request for peremptory instruction for negative answer to tbe second issue.
2. If there be no error in tbe ruling in either of those respects, tbe refusal of tbe court to give this special instruction requested in apt time: “If you find from tbe evidence and its greater weight tbat tbe defendant, Albert Grant, was instructed by bis eodefendant, Irving Kantor, to take two passengers from tbe city of Charlotte to tbe airport in Spartanburg, South Carolina, and return tbe car to tbe city of Charlotte and park same in tbe vacant lot at No. 115% South Church Street,- and you *588should further find that the said Grant, after taking the persons to Spartanburg, returned to Charlotte, and instead of parking the ear at the designated point, went on his own mission to North Charlotte for the purpose of visiting his family and ran over and killed plaintiffs intestate on his way back to the city of Charlotte, you will answer the second issue No/ and even though you should find from the evidence and the greater weight that he was on his way at the time of the injury and subsequent death of plaintiff’s intestate to park the said car at the said designated point, it will be your duty and the court so charges you to answer the second issue No.’ ”
Upon the evidence disclosed in the record we are of opinion and hold that the court properly ruled with respect to both the motion for judgment as of nonsuit and the request for peremptory instruction, but that there is error in the refusal to give the quoted special instruction as requested.
The underlying question raised by these' assignments is whether the servant, Grant, was acting within the scope of his employment by the defendant, Kantor, at the time of the injuries resulting in the death of intestates.
The owner of an automobile is not liable for personal injuries caused by it merely because of its ownership. Linville v. Nissen, 162 N. C., 95, 77 S. E., 1096; Martin v. Bus Line, 197 N. C., 720, 150 S. E., 501. The liability, if any, of the owner of an automobile operated by another rests solely upon the doctrine of respondeat superior. Leary v. Bank, 215 N. C., 501, 2 S. E. (2d), 570. This doctrine applies only when the relation of master and servant is shown “to exist between the wrongdoer and the person sought to be charged for the result of the wrong at the time and in respect to the very transaction out of which the injury arose.” Linville v. Nissen, supra; Martin v. Bus Line, supra; Liverman v. Cline, 212 N. C., 43, 192 S. E., 849.
The rule is well established that the master is responsible for the negligence of his servant which results in injury to a third person when the servant is acting in the scope of his employment or about the master’s business.
The rule is also well settled that the master is not responsible for the tort of his servant when done without his authority and not for the purpose of executing his orders, or while doing his work, but wholly for the servant’s own purposes and in pursuit of his private or personal ■ends. Dover v. Mfg. Co., 157 N. C., 324, 72 S. E., 1067; Bucken v. R. R., 157 N. C., 443, 73 S. E., 137.
A servant is acting in the course of his employment, when he is ■engaged in that which he was employed to do, and is- at the time about his master’s business. He is not acting in the course of his employment *589if be is engaged in some pursuit of bis own. Not every deviation from tbe strict execution of bis duty is sucb an interruption of tbe course of employment as to suspend tbe master’s responsibility, but, if there is a total departure from tbe course of tbe master’s business, tbe master is not answerable for tbe servant’s conduct.” Tiffany on Agency, p. 270; Robertson v. Power Co., 204 N. C., 359, 168 S. E., 415.
With respect to departure from employment, without consent of owner, ■“the general rule is that a servant in charge of bis master’s automobile, who, though originally bound upon a mission for bis master, completely forsakes bis employment and goes upon an errand exclusively bis own, .and while so engaged commits a tort, does not thereby render tbe master answerable for such tort under tbe rule of respondeat superior.” 5 Blashfield’s Cyc. of Automobile Law and Practice, section 3029.
Tbe question of owner’s liability for injury by automobile while being-used by a servant for bis own pleasure or purpose has been tbe subject ■of decisions by courts of many jurisdictions. These decisions are by no means harmonious under varying circumstances. See Annotations, 22 A. L. R., 1404; 45 A. L. R., 482; 68 A. L. R., 1055; 80 A. L. R., 727; 122 A. L. R., 863. Tbe trend of judicial decisions, however, is that tbe departure commences when tbe servant definitely deviates from tbe course or place where in tbe performance of bis duty be should be.' While there is conflict of authority on tbe subject, better reason supports tbe view that after a servant has deviated from bis employment, for purposes of bis own, tbe relation of master and servant is not restored until be returns to tbe path of duty, where tbe deviation occurred, or to .some place, where in tbe performance of bis duty, be should be.
Blashfield, in section 3051, Vol. 5, page 212, speaking with respect to returning from deviation, says: “Tbe majority rule, and probably tbe better view, is that tbe relation of master and servant is not restored until be has return to tbe place where tbe deviation occurred, or to a corresponding place, some place where in tbe performance of bis duty be ■should be,” citing decisions of courts in many states. In Humphrey v. Hogan, 104 S. W. (2d), 767, tbe Supreme Court of Missouri says that tbe weight of authority is well stated in this section. See, also, Annotations, 22 A. L. R., 1414; 45 A. L. R., 487; 68 A. L. R., 1056; 80 A. L. R., 728.
In Graves v. Utica Candy Co., 209 App. Div., 193, 204 N. Y. S., 682, it was held that when tbe driver returned from bis regular trip and went down tbe street on which bis employer’s place of business was located and got to a point where be could have driven into bis employer’s garage, but failed to do so, from that moment be abandoned bis employer’s service, and bis trip twenty-six miles north of bis employer’s place of business and bis return trip, occurred after be bad abandoned bis duty *590to his employer, were wholly without his scope of employment, and the-employer was not liable for injuries arising out of the accident, notwithstanding the fact that at the time of the accident the driver was on his-way hack to his employer’s garage.
In Virginia Ice & Freezing Co. v. Coffin, 166 Va., 154, 184 S. E., 214, the Court said: “Of course a servant is not required to return by airline from an errand performed, nor must he adopt the shortest practicable route. A detour in reason does not change his status, but an abrupt and unmistakable departure for some purpose of his own does.” In this case where a truck driver had been instructed to make a delivery and return to his employer’s factory and on his return trip had reached a point three or four blocks distant from the plant when he started to a point thirty-five blocks away in order to pay a personal bill, an accident, occurring after he had proceeded about twenty blocks on such journey,, the Court held that the relation of master and servant was suspended.
In Dairy Products Co. v. Defrates, 125 S. W. (2d), 282, 122 A. L. R., 854, the Texas Court said: “The test of liability is whether he was engaged in his master’s business and not whether he purposed to resume-it. It is equally true that Henderson owed the duty to his master of returning the car and resuming his employment and, while returning to-the zone of his employment, he was discharging that duty, but that fact, does not fix liability against the master. It was Henderson’s own wrong in driving away that created the duty to return, and in returning he was. but undoing that wrong. The return was referable to, and an incident, of the departure. He was no more engaged in his master’s business-while returning to, than while departing from his path of duty.”
Upon the evidence presented on this record we cannot hold as a matter-of law that the driver of the automobile was at the time of the accident-completely without the scope of his employment. The evidence is susceptible of the inference that in returning from Spartanburg the driver of the automobile had the choice of ways, one of which might reasonably take him by the home of his father and mother in going to the place-where he was directed to park the automobile. The evidence is also susceptible of the view that in returning from Spartanburg the driver of the automobile came within the zone of the terminus of his employment,, that is, in the vicinity of the place where he was directed to park the car, and that he then, for purposes of his own, drove the automobile two-miles in the northern direction to the home of his father and mother, and that at the time of the accident he was returning from this, his personal mission. If the jury should accept the latter view, then the-moment that the driver turned aside from his duty to drive the automobile to the place where he was directed to park, he departed from his-*591employment and remained outside of it until be returned to tbe point of departure. TJntil be reached tbat point, be was only returning to bis employment.
Tbe decision in Martin v. Bus Line, supra, in tbe light of similarity of facts, tends to support these principles.
We are not unmindful of what is said in Lazarus v. Grocery Co., 201 N. C., 817, 161 S. E., 553, with respect to deviation by tbe driver from bis master’s business. Affirmance there of tbe judgment below was specifically based on tbe authority of Jeffrey v. Mfg. Co., 197 N. C., 724, 150 S. E., 503. We find upon adverting to tbe record in tbe Lazarus case, supra, tbat there was judgment of nonsuit on tbe trial in tbe general county court of Buncombe County. Tbe Superior Court, in its appellate capacity, being of opinion tbat there was sufficient evidence to take tbe ease to tbe jury, reversed tbe judgment of nonsuit. Then, on appeal to this Court while defendant presented as tbe questions involved its contention tbat tbe servant bad completely departed from tbe scope of bis employment and was engaged on bis own business and for bis personal ends, tbe plaintiff made two contentions: (1) Tbat there was sufficient evidence to make out a prima facie case for tbe plaintiff under decision in tbe Jeffreys case, supra; and (2) tbat, conceding tbat tbe servant bad deviated from bis employment, be was at tbe time returning to bis employment. With respect to tbe first contention, tbe plaintiffs in their brief undertook to array in parallel tbe evidence in tbe instant case and tbe evidence in tbe Jeffreys case, supra. This Court agreed with plaintiff’s first contention, saying: “Tbe evidence should, therefore, have been submitted to tbe jury.” Then tbe Court stated tbat tbe evidence offered by defendant did not show such a deviation by tbe driver of tbe truck from defendant’s business as relieved it from liability to plaintiff as a matter of law under tbe principle of respondeat superior. Tbe statement which follows to tbe effect tbat although tbe driver of tbe truck bad deviated from tbe route over which be was directed by defendant to drive, be was returning to this route at tbe time of injury to plaintiff by bis negligence, was not necessary to tbe decision, and must be considered an incidental remark.
For reasons indicated there will be a
New trial.