dissenting: I am unable to agree with tbe result reached by tbe majority.
In tbe entire record — in tbe pleadings, admission of evidence, issues, instructions of tbe judge, tbe verdict, and tbe judgment — this Court has been unable to find positive error; only a negative error of omission rather than one of commission (a failure to give a requested special *592instruction) has been pointed out as reversible error. “Verdicts and judgments are not to be set aside for harmless error or for mere error and no more. To accomplish this result, it must appear not only that, the ruling complained of is erroneous, but also that it is material and prejudicial, amounting to the denial of some substantial right. In re Ross, 182 N. C., 477; Burris v. Lilaker, 181 N. C., 376.” Wilson v. Lumber Co., 186 N. C., 56 (57), quoted with approval in Collins v. Lamb, 215 N. C., 719 (720). This Court is without power to review the facts found properly by a jury (Wheeler v. Gibbon, 126 N. C., 811),. unless there has been (1) an error of law (2) prejudicial to the appealing party, the judgment should be affirmed.
The pertinent portion of the instruction, which is quoted in full in the majority opinion, was to the effect that if the jury found that Grant “returned to Charlotte, and instead of parking the car at the designated point, went on his own mission . . . and ran over and killed plaintiffs’ intestates on his way back to the city of Charlotte, . . . even though ... he was on his way at the time of the injury . . . to park the said car at the said designated point,” it would be the jury’s duty to free defendant Kantor of liability. Since it is not denied that-Grant had returned to Charlotte and was returning from a visit to his-family when plaintiffs’ intestates were killed, such an instruction would have eliminated the jury’s consideration of plaintiffs’ theory of liability. The trial judge, realizing this, in my opinion correctly refused to give-this instruction. An analysis of the trial theories of the prosecution and defense demonstrates the correctness of the trial judge’s ruling.
Plaintiffs insisted upon the correctness of two legal propositions, under either of which they would be entitled to recover: (1) That if Grant, returned to Charlotte by turning aside from the most direct route to the designated parking place and did so for the purpose of visiting his. family, the relationship of master and servant continued undisturbed until after plaintiffs’ intestates were injured; (2) that even if Grant, “returned to Charlotte and instead of parking the car at the designated point, went on his own mission . . . and ran over and killed plaintiffs’ intestates ... on his way back ... to park said car,”' the master-servant relationship, though broken by his departure on a mission of his own, was restored when he resumed his trip for the purpose of returning the car to the proper parking point. There is considerable authority to support both theories of plaintiffs. The first of these theories is not directly challenged here nor discussed by the majority opinion. It is because the granting of the special instruction approved by the majority would remove from the jury’s consideration this primary theory of plaintiffs’ case that I feel compelled to dissent. The majority view in the instant- case rejects the second of plaintiffs’' *593theories, thus sharply modifying if not entirely abandoning the earlier North Carolina rule. (See Duncan v. Overton, 182 N. C., 80, at p. 82, and Lazarus v. Grocery Co., 201 N. C., 817; 5 Blashfield, Cyclopedia of Automobile Law and Practice, section 3052, n. 13; 7-8 Huddy, Cyclopedia of Automobile Law, section 96, n, 94, both Blashfield and Huddy citing the Lazarus case, supra, as settling the North Carolina rule contrary to the majority opinion in the instant case. See, also, Jeffrey v. Mfg. Co., 197 N. C., 724.) Although I have some misgivings concerning the extent to which the instant majority opinion weakens, and brands as dicta, that portion of the Lazarus case, supra, to the effect that the master-servant relationship exists while a driver who has deviated from a direct route is returning to that route, I prefer to rest my dissent largely upon the much stronger ground that, in view of plaintiffs’ trial theories, the granting of the special instruction requested would have been reversible error.
The judge, in charging the jury, stated: “The plaintiffs in each instance say and contend that, prior to the injury and death, he (Grant) had never taken the car back to the place to which he was directed tO' take it, but that he had returned to Charlotte and while in Charlotte and on a byway, on his return, he stopped to see some of his people in North Charlotte, and that, having seen his people, he was returning by way of Brevard Street to the place called ‘Sportland,’ and that it was on his return to ‘Sportland’ to leave the car . . .; ■ that he was engaged in the performance of the thing that he was employed to do; that he was carrying the car to ‘Sportland’; that he had not taken the car to ‘Sport-land’ prior to that time; that there were a number of streets and avenues by which to approach the place called ‘Sportland’ in the city; that in completing the job which he was given to complete, the plaintiffs contend and say that he was not only the agent of defendant, Irving Kantor, but that at the time he was acting within the scope of his employment and in the completion of work entrusted to him to do.” The trial judge likewise charged, “Now, if the plaintiffs, in each instance, have satisfied you, by the greater weight of the evidence, that Irving Kantor employed Albert Grant to drive his automobile to Spartanburg, South Carolina, to take passengers and to return the car and place it at ‘Sportland’ and deliver the key to some person; that he carried the passengers to Spar-tanburg and returned with the car, and that upon his return he stopped by the home of some of his people in North Charlotte; that he left North Charlotte and was driving along Brevard Street toward the place called ‘Sportland,’ and that, so returning, he was engaged in the performance of what he was employed to do, and that such method of return could fairly and reasonably be deemed a proper means of performing the work or duties entrusted to him, then, the court charges you, that it *594would be your duty to answer tbe second issue 'Yes/ in suck instance, or in both, cases, if the plaintiffs, in both cases, have so satisfied you, by the greater weight of the evidence.”
These two excerpts from the charge were excepted to by defendant and argued in the brief of defendant. It is submitted that they were correct and that the propositions of law involved therein were without error. This likewise appears to be the majority view, as the majority opinion not only does not point out error in these portions of the charge, but specifically declares that the trial judge was correct in refusing to give a peremptory instruction to the effect that Grant, at the time of injury to plaintiffs’ intestates, was not acting within the scope of employment as servant of Kantor. Permitting the jury to consider the matters referred to in the above excerpts from the charge would have been inconsistent with the granting of the special instruction which the majority view approves) for the reason that the special instruction is, in effect, a peremptory instruction to find against plaintiffs on plaintiffs’ primary theory, to wit, that Grant, after returning to Charlotte, never so far deviated from the scope of his employment as to terminate the master-servant relationship. In my opinion, the trial judge was correct in refusing to give both the peremptory instruction as to the second issue and the special instruction which was practically equivalent to a peremptory instruction against the plaintiffs. In my opinion, the trial judge correctly submitted to the jury both the plaintiffs’ and the defendant’s theories, the plaintiffs’ theory being that Grant’s deviation from his duty as Kantor’s servant was so incidental that the master-servant relationship was not disturbed (Duncan v. Overton, supra), and the defendant’s theory being that Grant’s deviation from instructions was sufficient to constitute an independent mission of his own completely outside the scope of his employment and, as such, insulated defendant against liability (Martin v. Bus Line, 197 N. C., 720).
In addition to the North Carolina authorities cited above in support of plaintiffs’ position, the text authorities generally are to the same effect. “A mere deviation from the directed route, or the direct and usual route, does not constitute per se an abandonment of the master’s business, so as to relieve the master from liability for the negligence of the servant in driving. The fact that the deviation is made for a purely personal reason does not necessarily change this rule. Whether the extent of his departure from the area of his service was so unreasonable as to make of his act of deviation an independent journey of his own rather than a mere detour, or one incidental to his employment, is a question of degree, and ordinarily one of fact, unless the deviation is so great, or the conduct so extreme, as to take the servant outside the scope of his employment and make his conduct a complete departure instead *595of a deviation still incidental to his employment.” 5 Blashfield, Cyclopedia of Automobile Law and Practice, s. 3030. “A mere disregard of instructions and slight deviation from the line of the chauffeur’s duty, does not necessarily amount to a departure from employment, nor relieve the master from responsibility for his negligence, even though the route selected is not the shortest possible one.” 7-8 Huddy, Cyclopedia of Automobile Law, 9th Ed., s. 95. “To relieve the employer from liability, the deviation must be so substantial as to amount to a departure from the service, and must be for purposes entirely personal to the employee. . . . ‘In cases where the deviation is slight, and not-unusual, the court may, and often will, as matter of law, determine that the servant was still executing his master’s business. So, too, where the deviation is very marked and unusual, the court in like manner may determine that the servant was not on the master’s business at all, but on his own. Cases falling between these extremes will be regarded as involving merely a question of fact, to be left to the jury.’ ” 4 Berry, Automobiles, 7th Ed., pp. 620-621. To the same effect is Michie, The Law of Automobiles, N. C. Ed., s. 132. “A slight deviation, even on his own business, while on an errand for the master, will not render the chauffeur any the less the agent of the master, especially where the master’s implied consent could be inferred.” Babbitt, Motor Vehicle Law, 4th Ed., s. 1281. To the same general effect as the authorities cited above are 42 C. J., pp. 1110-1111, and 5 Am. Jur., pp. 714-715.
To summarize, the authority in support of the submission of plaintiffs’ theory that Grant’s deviation from employment did not destroy the master-servant relationship is ample and is impliedly approved by the majority opinion; hence, it would have been error, in my opinion, to have given the special instructions which the majority opinion approve. All of the evidence indicated that Grant returned to Charlotte and, before parking the car as he had been instructed, visited his family; hence, to have charged the jury that if it found that Grant returned to-Charlotte and instead of parking the car went on a mission of his own, the jury must answer the second issue “No,” would have been a peremptory instruction to find against the plaintiff. If the majority view is correct in stating that plaintiff made out a case for the jury, I am unable to perceive how a peremptory instruction to find against plaintiff can be approved. The case was, it seems to me, clearly one for the jury. The jury has passed upon the issues of fact and found for the plaintiffs; accordingly, in my opinion, the judgment should be affirmed.