dissenting.
It may be admitted that this case is very close to the line. The majority of the members of the court hold that the Standard Oil Company is not responsible under the workmen’s compensation law for the injury to Neil McNaught, its employee. In my opinion the compensation commissioner was right in finding that, under the facts *521and the law, the said company should pay the hospital bills and weekly award for the injury caused its employee when his truck upset. McNaught was required by his contract of employment to furnish a truck, but the company furnished the tank and the racks upon this truck. McNaught earned about $75 a month. The truck was filled with company gas, oil, and other products before he started out on his regular trip, but, finding that a customer was away from home, he drove the truck some four miles to Stromsburg to make his regular payment due on the purchase price of the truck. As soon as the payment was made he started directly back to see another customer, and when within a mile and a half of his territory his truck upset, and he was badly injured.
In Struve v. City of Fremont, 125 Neb. 463, being a workmen’s compensation case, it was held that, when a city fire chief, who used his own car, the city paying for the gas and oil therefor, while working on such car early in the morning, preparing to drive down to the fire station, was a victim of monoxide gas poisoning in his own garage, the city was responsible for his death, under the theory that his death occurred within the scope and course of his employment.
In Geraty v. National Ice Co., 16 App. Div. (N. Y.) 174, a cake of ice fell out of an ice-wagon and injured a passerby while a driver had temporarily driven on a side street on his own business. It was held generally that, if a servant makes a deviation from his route for his own purposes, and the master’s liability has been suspended while the servant has deviated from the route, such liability again attaches after he has resumed the prosecution of his master’s business.
In Riley v. Standard Oil Co., 231 N. Y. 301, 22 A. L. R. 1382, a truck driver was sent to a freight yard for goods. After obtaining them he went four blocks in the opposite direction upon an errand of his own. Having accomplished his errand, he started to return to the freight yard, but before he had reached the point where he had deviated *522from Ms master’s business he injured a child. Judge Andrews, in an opinion concurred in by Judge Cardozo, held that he was driving toward his master’s mill with the truck loaded with the master’s goods, his only purpose being to deliver such goods as his master had commanded, with no independent object of his own in his mind, and it was held that the relation of master and servant existed. Each of these statements applies as well to the case at bar.
Our court has already held that it is not necessary for one to have reached the zone of his employment, or the territory in which he was employed to work. It was so held in Keebler v. Harris, 120 Neb. 739, where a young man’s duty was to repossess an automobile and return it to his employer’s garage, but he deviated 25 blocks on a side trip for his own pleasure; then, when he started back to the garage with the car, he had a collision, and it was held that he was then engaged in his master’s business, even though he was not yet as close to the garage as he was when he deviated on his personal errand; Judge Rose rightly holding that he resumed his master’s business when he started to return.
In the case of Speas v. Boone County, 119 Neb. 58, a workmen’s compensation case, Speas was engaged in dragging roads for Boone county, for which he was paid $7.50 a day when he furnished four horses. On the day of the accident he was dragging the road along by his own farm, and at 11:30 a. m., having reached the driveway into his own farmyard, he turned in, unhitched, and the four horses entered the barn, and in going in to tie them, one of these four horses, which had theretofore been gentle, kicked him. In this opinion Chief Justice Goss said: “Speas was paid by the county for the use of the team. It was the duty of Speas to feed the team. It was implied in his contract of employment that he would feed them at noon. It was as important to feed them in preparation for the afternoon’s work as it was necessary for Tragas to have a sharp chisel for the purpose of cleaning out the pans on which he was working during regular *523working hours. Tragas could have sharpened the chisel during the hours for which he was paid instead of taking a portion of his hour for rest or refreshment thus to further his employer’s business. Speas could not both feed the team and eat his own lunch while the team was working.” The case referred to is Tragas v. Cudahy Packing Co., 110 Neb. 329, in which an injury was sustained while grinding a chisel during the noon hour to use when he again went back on duty.
In Perry v. Johnson Fruit Co., 123 Neb. 558, a traveling man furnished his own car, and while taping up a leaking gasoline line-and filling the vacuum tank, early in the morning at his own home, preparatory to making a trip for his employer, he was fatally burned. It was held that, under the principles announced in Speas v. Boone County, supra, his dependent was entitled to compensation. This repair work was no more the master’s business than was McNaught’s trip to make the payment due on his truck.
The statement in this second syllabus, that the relation of employer and employee does not exist until he returns to the place where by the terms of his employment he is required to perform service, is clearly against the holding of this court in Keebler v. Harris, supra, where he had only just started back from his pleasure trip, and was not as close to his point of deviation as McNaught was in the instant case.
An abundance of cases support the doctrine that, when the employee is on his way back from a private errand to carry out instructions given by his employer, the former relationship is restored. Gibson v. Dupree, 26 Colo. App. 324; McKiernan v. Lehmaier, 85 Conn. 111; Ritchie v. Waller, 63 Conn. 155, 27 L. R. A. 161, 38 Am. St. Rep. 361; Leilich v. Chevrolet Motor Co., 328 Mo. 112; Ann. 22 A. L. R. 1409; 26 Cyc. 1536.
In the second paragraph of the syllabus in the case at bar, it is held that making a payment on the purchase price of the truck which his contract of employment required him to furnish was not incidental to his employment. I *524insist that it was, for if a man, in doing a road-dragging job (Speas v. Boone County, supra,) which requires the use of four horses, can be allowed workmen’s compensation when he is kicked by one of those horses in his own barn, on the theory that it is incidental to his employment to feed the horses or else they cannot work after dinner, it forms a clear precedent for McNaught in the instant case, who must furnish a truck, and is injured one and a half miles out of his territory while making a payment which is required to be made to keep possession of the truck, which he is required to use in his master’s business; the cases are without distinction, and to be consistent, and follow its own precedent, this court should allow McNaught compensation.