(dissenting) .
The difference in the Court stems entirely from lack of agreement upon the nature of the question.
My brothers view the problem as one calling for an application of the dual purpose rule. In the language of Mr. Justice Cardozo,1 they ask, “whether it is the employment or something else that has sent the traveler forth upon the journey * * [167N.E. 182] To the extent that the existence of a question of whether the use of the particular instrumentality is within the scope of employment is recognized, it is answered without reference to the considerations relevant to a resolution of that question, but by reference to considerations which bear upon an application of the dissimilar dual purpose rule.2
*235If the question is one of the application of the dual purpose rule, I readily agree that the employment occasioned the travel. Major Miller, who was fatally injured in the collision, was driving his own automobile with his wife and his children as his passengers, but the trip to Ottawa, Canada, was undertaken because he had been transferred to a new, permanent duty station there. He had a personal purpose, to transport himself anl his family to a new residence, but his transfer to a new duty station was the effective cause of the travel. Such duality of purpose does not remove the conduct from the compass of the employer’s business. Under the dual purpose rule, the driving is properly held to be in furtherance of the business of the employer.
The right answer to the dual purpose question need not lead to a correct conclusion, however, if another question involving different considerations is present. What occasions the travel is the end of the inquiry only when the question is one of application of the dual purpose rule or arises out of some particularized deviation problem. It does not answer the question of whether the use of a particular instrumentality in furtherance of the business of the employer is within the scope of the employment of the employee.
The courts of New York have not resorted to a confusing use of language appropriate to a resolution of a dual purpose question when marking distinctions growing out of dissimilar questions.
It is the business of the employer that sends the insurance agent forth to deliver a policy to a prospect, but, as the majority recognize, it is the extent of the right of the employer to control and supervise the operation of the agent’s automobile which is the criterion of decision in New York upon the question of the employer’s responsibility for the agent’s negligent operation of his automobile. If the agent selects his own prospects and determines his own hours of labor, nothing else appearing, New York holds the right of control insufficient to support employer liability.3 On the other hand, the insurance company which closely supervises its debit agent who regularly uses his automobile because of the necessities of the work, is responsible for the agent’s negligent operation of the vehicle.4
The Western Union boy, in uniform, riding his bicycle in the direction of his employer’s office a few minutes before he was scheduled to start work, was bent upon service of his employer’s business. He had in mind no personal objective. Notwithstanding the element of control implicit in the requirement that he re*236port to work with his bicycle and in uniform, Western Union was held not responsible for his negligent operation of the bicycle.5
There may be some analogy between the going-to-work cases and transfer cases. In each case the employee’s travel is for the sole purpose of presenting himself at the place of work.
Of more immediate moment is the fact that New York does recognize the rule that a servant acting in furtherance of his master’s business, nevertheless, may be outside the scope of his employment if he utilizes an instrumentality which was not contemplated by the employment and which was not essential to performance of the work, or the use of which was excepted from the general right of the employer to control the physical conduct of the servant. In at least three cases, New York courts have held employers not responsible for injuries inflicted by automobiles negligently operated by their servants in furtherance of the business of the employer because the servant was not employed to drive automobiles,6 because use of the servant’s automobile was unnecessary in the light of other transportation provided by the employer 7 or was both unnecessary and in violation of the employer’s command.8 In Natell v. Taylor-Fichter Steel Const. Co.,9 an employee whose physical conduct was clearly subject generally to the control of the employer and who, with an expense allowance, was driving his own car in furtherance of his employer’s business was held to be acting outside the scope of his employment because the selection of the means of transportation was left to the employee and was determined by consideration of his personal convenience.
In all four of these cases there was a concurrence of the two elements the majority finds controlling and decisive. Each employee was a servant subject generally to the detailed control of the master. Each was acting in furtherance of the master’s business; it was the business of the employer which occasioned the travel. In each instance, however, the New York courts, applying the particular instrumentality rule, held the employer not responsible for injuries inflicted as a result of the negligent operation of the automobile.
Since we are referred to nothing which questions in any way the authority in New York of these four cases, if we are to follow New York law, not make it, I cannot concur in their rejection or agree that our inquiry goes no further than a finding that the servant was engaged in the business of the master.
Nor can I find in New York’s conventional treatment of deviation cases, dual purpose problems and questions of the status of insurance debit agents, repair and servicemen and salesmen, all of whom were regularly driving automobiles because of the necessities of the business, any indication that the New York courts have embraced novel doctrine or would no longer follow what they have repeatedly held. Each of the New York cases upon which the majority primarily relies seems consistent with prevalent notions and find abundant support in the Agency Restatements. Those cases are briefly *237summarized in the footnote,10 and need not be discussed at length here. With one exception, they do not illuminate the question which I think should be met.
*238In each of the New York cases relied upon by the majority, the court used language appropriate to a resolution of the question with which it was confronted. Such language is conventional in the context in which it was used, and should not be considered out of that context; at least, if disembodied language is to be applied to a dissimilar question, it should not be regarded as controlling. In one case it may be quite enough to say the employee was or was not engaged in the business of the employer; in another, the fact that he was may be beside the point.
Any generalized expression of the rule —that a master is liable for the torts of the servant committed while engaged in furthering the business of the master— necessarily ignores the exception. Courts have frequently declared hearsay evidence inadmissible without enumerating the exceptions, but the same court readily recognizes the exception when the question in the case demands it. The exceptions here are not so numerous as are those to the hearsay rule, but the exclusion of the use, under certain circumstanees, of particular instrumentalities is not the only exception. Motivation of the immediate act which causes the harm, though the actor be generally engaged in furthering the business of the employer, may call for the application of another exception in New York11 as in other jurisdictions, generally.12 New York’s very general statement of the basic rule, when general statement is appropriate, should not be construed to preclude the exception which New York recognizes explicitly and affirmatively.
The real question which I think should be answered, under Natell and the other New York cases excepting the use of a particular instrumentality from the employer’s control and responsibility, is the relation of the particular instrumentality, Major Miller’s automobile, to the employment. This involves the right of the Army, in its role of employer, to control its operation on this particular trip.
When an employee whose physical conduct is subject to the control of his employer, uses his own car in the business of the employer, the traditional approach has been to attribute to the employee, *239the owner of the vehicle, the right to control its use unless the circumstances of the employment support an inference that he had surrendered that right to his employer. Judge Magruder has stated the approach:13
“* * These cases recognize that a man like Sevigny, though in the general employ of defendant, may nevertheless be an independent contractor, not a servant, in the operation of his own car, even though, by permissive arrangement with his employer, he is using the car on company business. This result is not varied by the fact that the driver may at the time be transporting property of the employer. 'x' * * It is the normal presumption that the right to control as to the detailed operation of the car is an incident of proprietorship; and to render the general employer liable on the doctrine of respondeat superior there must be some evidence warranting the inference that the owner, while permissively using his own car on company business, has yielded up to his employer this right to control speed, route, and the other details of operation. If the evidence warrants such an inference, it does not matter that the employer may not in the particular case have exercised the right of control thus accorded to him. 'x' * * But it cannot be inferred that there was any such transfer of the right to control from the mere fact that the general employer may have agreed to reimburse the employee at so much per mile to the extent that the employee may use his own car on company business. * * * ”
In its application in Massachusetts, the rule is very strict,14 much less so in New York and most of the other states. Still the general rule is that the employer will not be held responsible for the negligent operation of the employee’s automobile unless something more appears than the bare fact of its use on that one occasion for some purpose related to the employer’s business. That this is the rule in New York is manifest in the opinion of the Court of Appeals in Cooke v. Drigant.15 There it was said that the circumstances surrounding the use of the vehicle on the occasion of the injury indicated its use was outside the scope of employment. The court found, however, that the presumption that the employee had retained the right to control the operation of his automobile was overcome by a combination of three facts: (1) that the business of the employer regularly required the use of the employee’s automobile, (2) the employer knew of its use, and (3) had required the employee to obtain liability insurance upon it.16
That the employee has transferred to his employer the right to control his operation of his automobile in the employer’s business need not be shown in New York by direct proof of the fact. It may be inferred from the circumstances of the employment, the nature of the control generally exercised by the employer and the necessities of the employ*240er’s business which occasion the use of the vehicle.17
It is significant that in every case to which we have been referred, in which a New York court has held the employer responsible, the ordinary business of the employer necessitated the regular and routine use of the employee’s automobile. This is in contrast to the single use by Major Miller of his automobile, and that for the purpose of transporting himself, his wife and his children to a distant city for the purpose of establishing their residence there. It is in contrast with the New York cases which held the employer not responsible when the employee used his automobile on a single occasion in the employer’s business but because of the convenience of the employee rather than the necessities of the employer’s business.18
So far as appears, Major Miller had never been required by the Army to drive his own automobile or any other vehicle. It does not appear that any duty he owed the Army required him to drive at any time. It does appear that his use of his own automobile on this occasion, rather than available public transportation, served no purpose of the Army. When moving himself and his family to a new residence in Ottawa, he must have wished to take with him the family automobile. At least, the choice to take it or not was his, though when he made it, the Army did not undertake to circumvent his personal purpose. Neither the orders of the Army, nor its business, required the use by Major Miller of his automobile on this, or any other, occasion.
It seems clear, therefore, that Major Miller’s family automobile was unrelated to his employment or to his conduct of the business of his employer. Under the law of New York, which governs our decision,19 I see no escape from the conelusion that its use on this single occasion for his personal purpose was outside the scope of his employment, not because his transportation of himself to Ottawa was not occasioned by the employer’s business, for it was, but because his selection of the means of transporting himself and his family to their new residence was unrelated to the employer’s business.
If there were no other indication of New York’s approach to the problem, Natell v. Taylor-Fichter Steel Const. Co.20 should point the way. Since I read it somewhat differently from the majority, some comment seems appropriate.
There the employee was an officer of a construction company specializing in bridge building. He received a monthly expense allowance of $500 to cover his travel and other expenses in serving the business of his employer. He left New York City, where the principal office of the employer was located, in his automobile and drove to North Tonawanda, New York, where he stayed for approximately two weeks, checking upon and supervising the construction of two bridges, projects of his employer. The amount of his monthly expense allowance and the nature of the employer's business suggest that such travel must have been frequent and frequently accomplished more conveniently by private automobile than by public transportation. It appears that some earlier trips to North Tonawanda had been made by train, but others had been made in the employee’s automobile, and this the employer knew. Nevertheless, the New York Court of Appeals affirmed a reversal of a judgment against the employer upon the ground that the employee, while driving his automobile on the return trip from North Tonawanda to New York, was outside the scope of his employment.21
*241Though it is plain that the employee was generally subject in his physical conduct to the detailed control of his employer and was engaged in furtherance of the employer’s business at the time of the injury to the plaintiff, the court concluded that the employer had no right of control of the operation of the employee’s automobile on that mission.
It is no answer to say that he did not receive a larger expense allowance when he used his own automobile than when he used other means of transportation and paid for it out of his pocket. Major Miller would not have, for he was to be reimbursed at the rate of six cents per map mile whatever means of transportation he chose. But clearly, the employee in Natell could not have claimed specific expense for use of his automobile without involving himself in grave controversy with the Internal Revenue Service, which certainly would have then questioned his receipt of a regular monthly expense allowance of $500.
It is clear that the employee in Natell was (1) a servant, (2) driving his own automobile in furtherance of his master’s business, (3) at the expense of the employer, and (4) with his knowledge. Nevertheless, it was held that use of the automobile was so unrelated to the employment that the employer had no direction or control over it.
The courts of another state might have found in the circumstances of Natell a sufficient relation between use of the automobile and the employment to impose liability upon the employer. There, travel to construction sites appears to have been a regular duty of the employee. The employee on previous occasions had used his automobile in performing those duties, as the employer knew. If those circumstances had not been present, I cannot suppose that the courts which decided Natell would have reached a different conclusion. Such circumstances would not have been present and the relation of the driving to the employment would have been much more remote if the employee had been a nontraveling, non-driving employee, a bookkeeper, transferred from a duty station in an office of the employer in North Tonawanda to a new permanent duty station in an office of the employer in New York City, who at the time was driving his own automobile, his family with him, from their former residence in North Tonawanda to a new residence in New York City. That is Major Miller’s case. If the relation between the use of the automobile was too remote in Natell, it certainly must be so here.
The doctrine which would govern decision in the courts of New York is one of wide currency. In the Restatement of the Law, Agency 2d, following § 239, this appears:
“Comment:
“b. The fact that the instrumentality used by the servant is not owned by the master is a fact which may indicate that the use of the instrumentality is not authorized, or if authorized, that its use is not within the scope of employment. The master may authorize the use of a particular instrumentality without assuming control over its use as a master. The fact that he does not own it or has not rented it upon such terms that he can direct the manner in which it may be used indicates that the servant is to have a free hand in its use. If so, its control by the servant, although upon his master’s business, is not within the scope of the employment.
“Illustrations:
******
*242“4. The master agrees with A, his servant, to pay for A’s transportation upon public vehicles such as railway trains and street cars. As an alternative, A is permitted to use his own automobile for transportation, charging to the master the regular train fare. A is paid by the week, with indefinite hours of labor. In going to a place at which he is to perform work for the master, A drives his own car, carrying thereon necessary tools and materials belonging to the master. In the absence of evidence that A owes P any duty of obedience in the details of operating the automobile, such driving is not within the scope of employment.”
This doctrine was the basis of decision in this Court in Eleazer,22 in Paly,23 and in Sharpe.24 It was the basis of decision in the Ninth Circuit in Chapin v. United States 25 in which the distinction between acts done within the scope of employment and those done “merely during the employment” is pointed out.26
*243It may be that the laws of New Mexico 27 and of Georgia 28 require a different answer when the act is done in those states. If the difference between the Circuits be conceptual,29 I see no reason to depart from the approach repeatedly taken by this Court until higher authority shall have settled the conflict. More significantly, when it appears that governing state decisions recognize that an employee using his own automobile in his master’s business under circumstances comparable to these is not acting within the scope of his employment, we have no choice but to apply the state rule as the state court does.
Some effort is made to put a special gloss on military transfers. This calls for final comment.
The “orders” transferring a military officer, or a governmentally employed civilian for that matter, are more formal than comparable directions of a private employer. This stems from the character of the employer, but there is no distinction in the effect of such directions upon the employee or in the relation of his travel to the employment. In either instance, final commands must be obeyed if the employment is to continue.30
By the addition of the letters “T D N” to Major Miller’s travel orders, the issuing authority certified that “the travel directed is necessary in the military serviee.” This certification was solely for the benefit of Major Miller. Without it, he could not obtain reimbursement for his travel expense. It added nothing to the authority of the order, and affects the character of the travel only as it shows that he was to receive reimbursement for his travel expense. It is entirely comparable to a promise by a private employer to reimburse an employee for the cost of transporting himself and his family to another city in which his new, permanent duty station is located.
Finally, it is suggested that military police regulations reveal the Army’s right to control the details of Major Miller’s driving and disclose its exercise.
This contention appears to have influenced the decision in Hinson 31 and of the majority here. It was rejected as immaterial in Chapin.32 It is based upon a fact which has been present all the while, but seems never to have been noticed, though it hardly could have been unknown, by any court until the Courts of Appeals for the Fifth and Ninth Circuits recently did notice it, with different results.
The Army has jurisdiction, concurrently with civil authority, to try and punish its own personnel for the commission of crimes. The Uniform Code of Military Justice proscribes such offenses *244as reckless driving and murder, among many others.
The exercise by the Army and Navy of police authority over their own personnel has a long history, which need not be elaborated here. The jurisdiction’s birth and retention involve many complicated considerations, including the need of orderly procedures when civil authority is absent or inoperative, the need of the military to be relatively free from interference by civil authority with its personnel, and the release of civil authority from the burden of policing military personnel when that burden is onerous.
Such considerations bear upon the military’s governmental function, not upon its function as an employer. They apply whether the individual subject to them is at work or play and without regard to the duties or the rights which spring from, an employment relation. The officer on leave driving his girl down lovers’ lane is subject to the same proscription against reckless driving as the military courier making his rounds in a military vehicle.
In applying the Congressional direction that the United States shall be liable in tort actions to the extent a private employer in similar circumstances would be responsible, we necessarily discriminate between what the United States does in its governmental capacity and what it does in its role of employer.
Of course, the police regulations do not control the driving so long as it is within the broad limits of the law. When he starts, where he stops, what route he takes, who goes with him, at what pace he proceeds and what diversions he pursues en route, these are all left to the individual. As employer, the only requirement of the Army is that he be at the appointed place at the appointed hour, and time allowances are liberal. As policeman, the Army’s only requirement is that he observe the law. This is not that detailed control of the manner and the means by which the work is to be accomplished which has been regarded as the basis of vicarious liability.
The possible implications of this contention are intriguing. Is a judge of New York’s Court of Appeals, a public servant in the highest sense, a servant of his employer in this sense when he drives from the city of his residence to Albany in order to be present at the convening of a term of his court, because New York enjoins all of its citizens not to drive recklessly? What is his status if he drives on a federal parkway under the exclusive jurisdiction of the United States?33 Is a federal judge driving from the city of his official duty station to the city in which his court is presently to be convened a servant within the meaning of the Tort Claims Act when, en route, he travels upon a federal parkway, but is not when the police jurisdiction is exclusively that of the state ?
I think the Army’s police jurisdiction irrelevant to the inquiry.
Being of the opinion that New York law requires a determination that use of his automobile on this occasion was not within the scope of his employment under the rule of § 239 of the Restatement of Agency, I would ask the question which would be asked in the courts of New York and answer it as those courts have.
I would affirm.
. Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181.
. It is also suggested that the particular instrumentality question cannot arise. Since, under the general employment, *235Major Miller was a servant of his employer, it is said the law gives the employer the right of immediate control of whatever instrumentality the servant selects. Having such a right of control, responsibility for the consequence of the servants’ use of any such instrumentality is said to follow, I find no support for the proposition in the laws of New York or in the decisions of its courts. On the contrary, there are positive holdings that the particular instrumentality question does arise and must be met though the employee be a servant for whose physical conduct in the scope of his employment, the employer is responsible. Conigliaro v. Mills, 261 App.Div. 839, 24 N.Y.S.2d 898; Natell v. Taylor-Fitchter Steel Const. Co., 257 App.Div. 764, 15 N.Y.S.2d 327, affirmed 283 N.Y. 737, 28 N.E.2d 966; Taub v. New York Board of Fire Underwriters, 238 App.Div. 587, 265 N.Y.S. 644; O’Loughlin v. Mackey, 182 App.Div. 637, 169 N.Y.S. 835. The New York cases are consistent with the rule generally applied throughout the United States. See Restatement of the Law, Agency 2d, § 239. For a statement of the different question which arises under the dual purpose doctrine, see Restatement of the Law, Agency 2d, § 236.
. Dunne v. Contenti, 256 App.Div. 833, 9 N.Y.S.2d 248. See also Fritz v. Krasne, 161 Misc. 442, 291 N.Y.S. 10, affirmed 248 App.Div. 573, 288 N.Y.S. 1092, affirmed 273 N.Y. 649, 8 N.E.2d 330 (a salesman on commission).
. Burdo v. Metropolitan Life Insurance Co., 279 N.Y. 648, 18 N.E.2d 42; Cooke v. Drigant, 289 N.Y. 313, 45 N.E.2d 815. See also, Gutov v. Krasne, 266 App.Div. 302, 42 N.Y.S.2d 20, affirmed 292 N.Y. 602, 55 N.E.2d 372.
. Wright v. Western Union Telegraph Co., City Ct.N.Y., 87 N.Y.S.2d 444. New York follows the conventional rule that travel between home and office is not a part of the employment. Rosenberg v. Syracuse Newspapers, 248 App.Div. 294, 289 N.Y.S. 91; Murphy v. United States, D.C.W.D.N.Y., 113 F.Supp. 345. Of course, if one is employed to work out of his home, his home may be treated as his office. Bennett v. Marine Works, 273 N.Y. 429, 7 N.E.2d 847; Burdo v. Metropolitan Life Insurance Co., 279 N.Y. 648, 18 N.E.2d 42; Shauntz v. Schwegler Bros., Inc., 259 App.Div. 446, 20 N.Y.S.2d 198.
. O’Loughlin v. Mackey, 182 App.Div. 637, 169 N.Y.S. 835.
. Conigliaro v. Mills, 261 App.Div. 839, 24 N.Y.S.2d 898.
. Taub v. New York Board of Fire Underwriters, 238 App.Div. 587, 265 N.Y.S. 644.
. 257 App.Div. 764, 15 N.Y.S.2d 327, affirmed 283 N.Y. 737, 28 N.E.2d 966.
. In Riley v. Standard Oil Co., 231 N.Y. 301, 132 N.E. 97, 22 A.L.R. 1382, a truck driver liad been sent to pick up a load ox paint in a freight yard. There, he saw some loose wood, of which his sister was in need. He threw this wood upon his truck, loaded the paint and drove away from the direction of his master’s mill to his sister’s homo. After delivering the wood at his sister’s house, he drove directly in the direction of his master’s mill with the loaded paint, having no other purpose than its delivery as he was ordered. En route, but before repassing the freight yard, the accident occurred. The Court of Appeals held that the deviation was over and the truck driver had re-entered his master’s employment.
In Clawson v. Pierce-Arrow Motor Car Co., 231 N.Y. 273, 131 N.E. 914, the servant intended a deviation, but it had not yet commenced. He was a chauffeur driving one of the defendant’s demonstrators to a garage owned by the defendant where it was to be stored for the night. En route, he was directed by a superior to drive a seamstress, employed in the superior’s home, to her residence, a short distance beyond the garage where the automobile was to be stored. The accident occurred as the chauffeur proceeded directly toward the garage. The fact that he intended to pass the garage when he reached it, deliver the seamstress to her home and then return to the garage, did not establish a departure from the master’s business at the time and place of the accident.
In Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181, a workmen’s compensation case, a plumber’s helper undertook a trip for personal reasons. Since the trip was to bo made, the plumber asked his helper to do a small job in the town to which he was going. The job was not large enough to justify the trip. Since his personal reason, not the job, sent him on his way, the Court of Appeals held he was acting outside the scope of his employment.
In Burdo v. Metropolitan Life Insurance Co., 279 N.Y. 648, 18 N.E.2d 42, an insurance agent living in Saratoga Springs was required to work a debit route, much of which was in neighboring towns and hamlets and in the country remote from bus lines. Without the use of his automobile, he could not effectively discharge these duties and he was reimbursed for the use of his automobile whenever he went outside Saratoga Springs. On the particular morning, he left his home, collected premiums from some fifty policyholders in other towns and hamlets and in the country, and was returning in the evening from his last call to his home when the accident occurred. The insurance company exercised extensive control over him and since he worked his route out of his homo, the employer was held responsible.
The closely supervised debit agent in Cooke v. Drigant, 289 N.Y. 313, 45 N.E.2d 815, used his own automobile and was proceeding in it from his debit territory to the office of the insurance company to which he was required to report at the time of the accident. Public transportation was available and was a reasonable alternative for the particular trip. A verdict for the injured plaintiff was set aside by the trial judge, and the Appellate Division affirmed, each apparently upon the ground that the instrumentality used by the agent was so foreign to his employment that its use was outside the scope of that employment. The Court of Appeals reversed, holding first that the close control and supervision showed that he was not an “independent contractor.” The Court of Appeals declared that the question of scope of employment was a very dose one. It said that the fact that the debit agent was not required to use his automobile on this trip and was not reimbursed for its expense indicated its use was outside the scope of employment, but that this was outweighed by a combination of three circumstances: (1) the insurance company knew the agent used his automobile, (2) it required that he obtain liability insurance in connection with its use, and (3) the duties of soliciting new business, which it imposed upon him, required the use of an automobile. The court concluded that, at least by implication, the agent was required by his employer to use his automobile. It follows, of course, that if the employer requires the use of a particular instrumentality, its use in the business of the employer is within the contemplation of the employment.
In Kanigher v. Schwerin Air Conditioning Corporation, 280 N.Y. 751, 21 N.E.2d 520, a reporter’s summary discloses the fact that the employee was a commission salesman who used his own automobile in calling on prospects, but reveals none of the detail of his duties or of his use of the automobile. The trial judge dismissed the complaint. The Appellate Division affirmed without opinion. The *238Court of 'Appeals reversed, per curiam, saying merely, “There was a question of fact as to employment.”
In Schauntz v. Schwegler Bros., 259 App.Div. 446, 20 N.Y.S.2d 198, a serviceman installed, repaired and serviced electrical equipment sold by his employer. He used his own automobile in which he carried the necessary tools and equipment. While out on jobs he would sometimes receive phone calls directing him to other jobs at other places, as he did on the afternoon in question. When done with all the jobs for the day, he could return to his home, but remained on call until 11:30 at night, and, for the purpose of such calls, required his automobile and the tools and equipment which he carried in it. On the particular day, he completed the last job on which he had current instructions about 9:00 o’clock in the evening, and proceeded toward his homo, where, after arrival, he would remain on call for at least two more hours. The accident occurred as he was on his way to his home.
In Gutov v. Krasne, 266 App.Div. 302, 42 N.Y.S.2d 20, affirmed 292 N.Y. 602, 55 N.E.2d 372, the employee was an outside salesman who used his own automobile in the employer’s business without being reimbursed for his expense. The testimony showed that the defendant controlled the detail of the work and its handling; but there was no showing that the employer ever exercised any control over the manner in which the employee drove his own automobile. The court held the employer responsible, saying that it was unnecessary to show specifically that he had exercised control of the physical operation of the automobile, for it appeared that he did retain the general right to control the manner in which the business was handled and conducted.
The problem here was not presented by any of these cases, excepting only Cooke v. Drigant. In that one case, the court was concerned with the present problem. Its concern with it, its treatment of it, are at odds with the contention that a correct answer to the dual purpose question also answers the question here.
. De Perri v. Motor Haulage Co., 185 App.Div. 384, 173 N.Y.S. 189.
. Restatement of the Law, Agency 2d, § 235.
. Conversions & Surveys, Inc. v. Roach, 1 Cir., 204 F.2d 499, 501.
. See, for instance, Gladney v. Holland Furnace Co., 336 Mass. 366, 145 N.E.2d 694.
. 289 N.Y. 313, 45 N.E.2d 815.
. Since the Court of Appeals had determined that the employee was a servant, not an independent contractor, and was using the automobile in the employer’s business, the court would never have reached the scope of employment question if the rule suggested by the majority was recognized in New York. The court cited Comment b under § 239 of the Restatement of Agency and avoided the result of the rule only because of the combination of the three factors, particularly the fact that performance of the duties the employer required of him, necessitated his use of his automobile. Clearly the court recognized the principle of § 239 of the Restatement, and, as clearly, dealt at length with the question which arises here.
. See particularly Gutov v. Krasne, 266 App.Div. 302, 42 N.Y.S.2d 20, affirmed 292 N.Y. 602, 55 N.E.2d 372.
. See cases cited, footnote 2. See also Cooke v. Drigant, footnote 10.
. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761.
. 257 App.Div. 764, 15 N.Y.g.2d 327, affirmed 283 N.Y. 737, 28 N.E.2d 966.
. In the Appellate Division, there was an alternate ground that he was not authorized to invite the plaintiff to ride with him. Since the Court of Appeals affirmed without opinion, it cannot be said, *241with certainty, whether the primary, or the alternate, ground of decision in the Appellate Division was the basis of decision in the Oourt of Appeals. In either event, the result is hardly consistent with the suggestion that New York recognizes no exception to the general rule that the master is responsible for the torts of his servant if the servant, generally, is engaged in the conduct of the master’s business.
. United States v. Eleazer, 4 Cir., 177 F.2d 914. It is true that the orders of Lt. Talley permitted a delay in reporting, ehaz'geable as leave, and that he intended to stop for several days in Atlanta en route from his former station in Cherry Point, North Carolina to his new statin in Corpus Christie, Texas. When the collision occurred, liowevez-, he was on the direct route between the two stations, and the case was treated as if his destination was Corpus Christie, not Atlanta, and that the purpose of his travel was to report in Corpus Christie, as he had been directed. Such treatment seems cleaz-ly correct. He was headed toward Corpus Christie on a leg of his journey for the purpose of reporting there, and this business purpose, alone, was sufficient to occasion the travel. That he had a dual purpose, to go to Atlanta on leave, is immaterial. Under the dual purpose rule, the travel properly was treated in furtherance of the business of the employer. His driving was held to be outside the scope of his employment because of the particular instrumentality rule, not because of the dual purpose rule. Comment b and Illustration 4 under § 239 of the Restatement of Agency were quoted and relied upon, an irrelevancy if it had been thought he was on a frolic of his own and decision was to turn on that ground. The decision is indistinguishable from this case.
. Paly v. United States, 4 Cir., 221 F.2d 958, affirming D.C., 125 P.Supp. 798. I do not understand decision there to have turned upon any finding that the serviceman’s use of his automobile to attend the funeral, as he was ordered, was unauthorized. The practice was for official military escorts to ride with the body in the hearse. Here it was known that the hearse had left before the orders were received, but the serviceman was instructed to proceed to Baltimore under orders which required the travel with a right of reimbursement for his expense. The orders did not specify the means of travel. At least in this court it was assumed that use of his car was permissive, but not required. Decision in this court was rested squarely on Eleazer and Sharpe.
. United States v. Sharpe, 4 Cir., 189 F.2d 239. Sergeant Thompson was a paratrooper. His company was being transferred from Fort Bragg, North Carolina, to Elgin Field, Florida, a distance of 750 miles. Some of the company were to be ti-ansported by truck; others by plane, while Thompson and a few others who owned private automobiles obtained permission to travel independently in their own vehicles. These were briefed on the best routes and were told they could rejoin their fellows who were tz'aveling by truck at Forts Gordon and Benning and there obtain accommodations en route. To legalize their status, these independent travelers were given passes, not for the purpose of going upon frolics of their own, but to avoid technical absence without leave as they proceeded directly to the new duty station there to report at the appointed hour. Sergeant Thompson was engaged in this travel, in compliance with the requirement that he report at Elgin Field, when the accident happened in South Carolina. He was discharging his duty in connection with the transfer no less than was Major Miller here. Except that he received no mileage allowance, the decision is indistinguishable from this case.
. 258 F.2d 465.
. See also: Jozwiak v. United States, D.C.S.D.Ohio, 123 F.Supp. 65; McVicar v. Union Oil Co., 138 Cal.App.2d 370, 292 P.2d 48; Holdsworth v. Pennsylvania Power & Light Co., 337 Pa. 235, 10 A.2d 412.
. United States v. Mraz, 10 Cir., 255 F.2d 115.
. Hinson v. United States, 5 Cir., 257 F.2d 178.
. Judge Murrali in Mraz (footnote 27) suggests that it is, as do the majority here. Well it may be. As suggested at the outset, the difference seems to be in the definition of the question. When the question I think crucial is faeed, as it has been in the past in this Circuit, one result follows: If the question is phrased in terms of the dual purpose rule, the United States would have been held responsible in each one of these cases. This is graphically illustrated by the cases in the Ninth Circuit. In United States v. Kennedy, 9 Cir., 230 F.2d 674, the crucial question was conceded or not raised. Approaching the facts in terms of the dual purpose rule, the court pro-needed inevitably to the conclusion that the United States was responsible. Later, in Chapin v. United States, 9 Cir., 258 F.2d 465, when the crucial question was raised, the court reached the opposite conclusion. In doing so, it recognized that the two cases are indistinguishable on their facts; in the first case the court answered one question with one result; in the next, a different question with a different result.
. It is not suggested that distinctions should be drawn between those military men whose service is involuntary and those who are free to resign. It does not appear that Major Miller’s service was involuntary.
. Hinson v. United States, 5 Cir., 257 F.2d 178.
. Chapin v. United States, 9 Cir., 258 F.2d 465.
. See Kay v. United States, 4 Cir., 255 F.2d 476.