(dissenting).
I agree with the majority decision that a jury question was presented and that the motion for directed verdict was properly denied. I regret that I cannot agree that the case should be remanded for new trial.
As the basis for my reasons for dissent, certain evidence not quoted in the majority opinion must be reviewed. De-Vaull, who testified for Kaplan, is the manager of all operations for Kaplan. He lives in a suburb of Cleveland, Ohio, and testifies very little as to the situation at the Pittsburgh terminal. DeVaull says that Tillery, the dispatcher of the Kaplan Pittsburgh terminal, was in charge of the operation of Mogielski’s two trucks, one of the drivers being Fotta. The situation and practice of Kaplan at Pittsburgh are all-important in this case. Tillery’s testimony explaining the Pittsburgh situation and operation is more valuable than that of any other witness. It is in general undisputed and in effect establishes the following facts;
While Kaplan is a large concern with terminals and certificated routes in 8 states, it did not own the equipment in Pittsburgh in any case where Pittsburgh was the driver’s home base. In Pittsburgh it generally used the services of Pittsburgh owner-operators. The loads out of the Pittsburgh terminal were 100% steel. Kaplan was so short of equipment that returned trucks were sent out as soon as they came in. As fewer steel loads came back into Pittsburgh because the steel was moving out, not in, the owner-operators, if they had not been able to trip lease to other concerns, would have operated empty a large part of the time. They therefore insisted upon making trips for other carriers when they could not get a load from Kap-lan. That Mogielski had such an understanding with Kaplan is undisputed.
Since Kaplan had certificates for irregular routes, the individual drivers could choose their routes. Hence Til-lery could not know the route on which a driver would return to Pittsburgh.
Kaplan failed to exercise over its owner-operators, at least in the area here involved, the control required under Administrative Rule 4 of the Bureau of Motor Carriers, Interstate Commerce Commission, that the operation under which a vehicle is leased and operated for Kaplan by an owner-operator “must be conducted with the supervision and control of such carrier.”
Both Tillery and DeVaull stated that no written rules for operation were given by Kaplan to the owner-operators. Thus Mogielski or Fotta was supposed to call the Kaplan terminal in any place where there was a Kaplan terminal before accepting a load from another concern, but no written rule existed to that effect. While Mogielski said his contract was to give priority on loads to Kaplan, Tillery said that Mogielski could hire his equipment out to other concerns without con-*260suiting Kaplan. Mogielski said the only instruction he received from Kaplan when he got a load was “where to deliver it.” No record was kept by Kaplan of the calls for loads. Tillery said the trip lease used in the “wildcat” transactions controls the driver only until he reaches the point of delivery and at that point the vehicle is his again. To a question, “So when he is empty he is your man until he takes another load, isn’t he?” Tillery answered, “That’s right.” Til-lery stated it would be proper for Fotta to come back empty on December 31st and take his next load out two days later. If a driver was as far away as Buffalo and could get back before the holidays, Tillery said, Kaplan gave him no instructions, and Fotta was entitled to deadhead back to Pittsburgh as his home terminal. Kaplan had issued instructions that his equipment was not to be on the road on holidays.
This testimony establishes two facts: (1) The Transamerican trip lease was authorized by Kaplan and was not a deviation and (2) The return of Fotta to Pittsburgh was authorized by Kaplan.
We therefore are not concerned with the somewhat conflicting testimony as to Fotta’s movements between Columbus and Mansfield December 28 to December 30 (when he started for Buffalo). Whether or not these movements, permitted by Kaplan, were deviations is immaterial. Decision here turns upon the status and legal relationship existing between Kaplan and Mogielski, who gave orders to Fotta, after the delivery of the Transamerican load in Buffalo and the expiration of that particular trip lease. It is undisputed that the Transamerican load was delivered in Buffalo on the morning of December 31 and that Fotta started back to Pittsburgh about noon on that day. The lease between Mogielski and Kaplan was still in effect and governed the parties immediately upon delivery of the Transamerican load. As Tillery said, when Fotta started home empty he was again Kaplan’s man. The fact that Buffalo was a long way from Columbus and that a route to Pittsburgh from Columbus via Buffalo was not entirely direct is immaterial. The route from Buffalo to Pittsburgh via Erie and Route 19 was as direct as any route could be over the hills of northwestern Pennsylvania and the watersheds of streams flowing into the upper reaches of the Allegheny. Both the Buffalo to Pittsburgh route via Erie and Route 19, where the accident occurred, are certificated Kaplan routes.
The temporary but permitted deviation from employment by Kaplan ended upon the delivery of Transamerican goods. Ordinarily when an employee deviates or departs from his employment and thereafter resumes his duties the relation of master and servant is restored. Restatement of the Law of Agency, Section 237; United States v. Wibye, 9 Cir., 191 F.2d 181.
Tillery’s testimony demonstrated that Fotta’s return run to Pittsburgh on any Kaplan route was within the contemplation of Kaplan and Mogielski and was an expected incident of the outbound trip for whose safe completion Kaplan was responsible. The relation of master and servant had been restored and Kaplan was liable for the negligence of his servant on the inbound trip. Marriott v. National Mutual Casualty Company, 10 Cir., 195 F.2d 462; Hodges v. Johnson, D.C., 52 F.Supp. 488; American Transit Lines v. Smith, 6 Cir., 246 F.2d 86, certiorari denied 355 U.S. 889, 78 S.Ct. 261, 2 L.Ed.2d 188. It is undisputed that the Kaplan operation did not contemplate return to Pittsburgh by any particular route. As Tillery said, the men were “not told to come right to Pittsburgh.” In answer to a question that when a man left Pittsburgh “you are never sure from what direction he is going to be coming back in empty?” Tillery said, “That's right.” He said that he raised no question as to how Fotta came in from where he was.
The majority opinion holds that the Marriott case does not control as to the Buffalo-Pittsburgh leg of the journey. *261First, it concludes that the collision in the Marriott case happened upon the direct homeward route while the accident here did not.
With due deference to the opinion of my colleagues, I cannot agree that this comparison is correct. Womack, whose negligent driving was held to have caused the accident involved in the Marriott case, was the owner and driver of the truck leased to S & C, a certified carrier. He made delivery of a load for S & C at Miami, Oklahoma. He did not return to the home terminal of S & C from Miami. After going to Tulsa, Womack carried a load under a one-way trip lease for Riss & Co. to Wichita. This trip was a deviation just as was the trip to Buffalo in the instant case. It was no part of the performance of the contract to deliver goods for S & C that Womack should go first to Tulsa and then to Wichita and haul for another concern. When Womack returned from Wichita to Hutchinson, Kansas, the S & C home base, he was returning empty after delivery of a load, which trip constituted a departure from his contract with S & C just as Fotta was returning after the Transamerican transaction. Womack traveled a certificated S & C route and Fotta traveled a certificated Kaplan route. The route Fotta took from Buffalo to Pittsburgh was as direct, though not so. straight, as that Womack took from Wichita .to Hutchinson. It was when Fotta was again Kap-lan’s man, traveling to his terminal city as he had a right to do, that the accident occurred. The Marriott case cannot be distinguished on this point.
The majority opinion points out as the second difference between this and the Marriott case that in Marriott there was no suggestion that after the delivery under the trip lease the driver was on a personal mission of his own. The only evidence in favor of appellant on this point was that Fotta said he was going home and also, when asked whether he was working for Kaplan, he said “No.” The majority opinion holds that the court was in error in refusing an instruction requested by Kaplan upon this point to the effect that, when a servant goes upon a mission of his own and makes a clear and complete deviation and departure from the scope of his master’s business, as a matter of law the master is not responsible for the act of the servant during the period of such deviation and that, if Fotta was upon a personal mission of his own, and had made a clear and complete ■ departure from the business of Kaplan and the scope of his employment by that company on his return to Pittsburgh from Buffalo, Kaplan would not be responsible for any acts of Fotta at the time of the collision.
On this point the record is also clear. Fotta and Mogielski both lived in Pittsburgh. Their terminal was Pittsburgh. Kaplan’s orders for loads were delivered to Fotta by Mogielski, and Mogielski, who hired Fotta and paid him, told Fotta to take the Transamerican load to Buffalo, dump it, and come back. It is true that Fotta said that he was going home when he left Buffalo. He was obeying Mogiel-ski’s order. It is also true that he said on the return trip he was not doing work for Kaplan. He was carrying no load for Kaplan.
The fact that Fotta desired to be in Pittsburgh for the New Year in no way conflicted with his service to Kaplan in returning the empty truck to Pittsburgh. Undoubtedly Mogielski, who was the owner and in touch with Kaplan, knew that he would get a load out of Pittsburgh. Tillery comments on the fact that Mogielski insisted that his equipment be used continually. This was the reason that Mogielski would take a permanent lease with Kaplan only on condition that he could haul'for other concerns if Kaplan did not give him loads. On Route 19, Kaplan’s route, Fotta, who at that point was Kaplan’s man, was driving the empty truck to Pittsburgh, the city of the home terminal, as the jury evidently found, with the intention of reporting to the dispatcher for a load when he could get a load, presumably on January 2.
*262As stated in Restatement of the Law of Agency, Section 236, the fact that the driver may have a dual purpose to be accomplished contemporaneously, for instance, the personal mission of returning home as permitted by the master and the master’s mission of returning the leased equipment for the next load, does not destroy the agency relationship. United States v. Wibye, supra, 191 F.2d 183; Ryan v. Farrell, 208 Cal. 200, 280 P. 945. The requested charge ignored this rule. It did not specify that if Fotta was proceeding solely and entirely on a personal mission Kaplan would not be liable.
It cannot be maintained under this record that Fotta at the time of the accident had made any departure from the business of the Kaplan Trucking Company and the charge was rightly refused. Moreover, as to the instructions given, because of Kaplan’s- rule of not driving on a holiday, no. load would have been given to Fotta in either Buffalo or Pittsburgh. Fotta could not have had a specific intent to go directly to the terminal to secure a load that night. The instruction of the court that the jury should find whether Fotta had the “general intention after completing his return trip to report to Kaplan’s Pittsburgh dispatcher for a load” was not prejudicially erroneous.
As the final deadhead portion of the return trip was a reasonably necessary incident of the outbound journey, the rationale of Marriott v. National Mutual Casualty Company, supra, requires af-firmance of this case. The carrier’s duty is to control its drivers, Dixie Ohio Express, 17 M.C.C. 752. The fulfillment of its full responsibility under the rulings and decisions of the Interstate Commerce Commission quoted in the majority opinion requires that the risk of the contemplated and customary empty return should be borne by the certificated carrier which, under its franchises, puts the dangerous instrumentality into motion on the highway on the loaded outbound trip.
The judgment should be affirmed.