(dissenting).
This judgment should not stand. It is based on the strange and inherently improbable story of a near midnight journey to Grants for the stated purpose ' of buying water bags and an alarm clock. Yet Freeman and Lopez admittedly spent practically the entire time while there in a saloon from which they emerged at 2 a. m., closing time, “staggering drunk” to become involved in the car wreck in which plaintiff was injured some 15 minutes later one mile from Grants enroute back to San Fidel, 15 miles away. They had not left San Fidel on this ill fated journey until 10 :30 p. m., a few hours earlier.
.The unreasonableness of Freeman’s story of the midnight sortie to Grants to purchase water bags, et cetera, tested in the light of what subsequently transpired, compels the inference that he and Lopez went to Grants to put on a Saturday night “drunk” which they did, rather than to purchase an alarm clock and water bags which they did not, and as sensible men must have known they could not from the unseemly hour of their departure. Viewed against the background of admitted facts, Freeman’s story of the purpose of his trip to Grants would have been scarcely less credible had he testified the wreck occurred while enroute to Flagstaff, Arizona, more than 200 miles distant, for the same purpose.
This story of the condition of Freeman and Lopez at time of the wreck is not surmise. It was given by plaintiff’s own witness, a State Patrolman, the late Nash Garcia, officially present to investigate the wreck, who described them as “staggering drunk” and making such a nuisance of themselves in his effort to get the injured in an ambulance, that he placed both under arrest and later in jail at Grants for the night on drunk and disorderly charges.
The foregoing is but one aspect of the case which demonstrates the inherent improbability of the whole story told by Freeman, himself a codefendant. This testimony about purpose of the trip was first given when he was called to the stand for plaintiff on the pretense of being an “adverse” witness, thus licensing the leading question which produced the testimony of the supposed custom of water being provided by the employer, Haake, for men on the job. Yet this same witness and co-defendant, the one person directly responsible for plaintiff’s injuries, if either defendant was so, is favored by plaintiff’s voluntary dismissal of him as a codefendant in his last appearance on the stand, thereby exposing the pretense of the character in which he had been called as an adverse witness.
Notwithstanding the bald statement from Freeman that there was such a custom, he testified as well that the only water bags used on the job prior to that time belonged to Hathaway; that the only ones used after-wards belonged to other men on the job; that all were bought and paid for by them and that if he had been able to find water bags at Grants at the unseemly midnight hour when he claimed to have toured darkened stores and shops seeking them, they would have been paid for by him and would have belonged to him. Note his testimony, to-wit:
“Q. The water bags that you were going to get in Grants, how were you going to pay for them? A. Myself.
“Q. Did you expect to be reimbursed for the price of those bags? A. No, sir.
“Q. You didn’t expect to be reimbursed for the bags any more than you expected to be reimbursed for your carpenter tools, did you? A. No, sir.
‡
“Q. Had Mr. Gibson or Mr. Hathaway or anyone told you to go to Grants to get a water bag and an alarm clock?
A. No, sir.
“Q. Had anyone told you to provide or furnish a water bag on the job ? A. No, sir.”
Furthermore, there was a spring of fresh water almost within a stone’s throw of the job (200 yards) from which water in buckets or pails easily could be brought to the job and kept on hand without the necessity of the men taking time off for water every time one wished a drink. It was mid-November and there was no danger of the water getting hot. So it is that the only custom involved, as shown by this same witness, Freeman, was for the men themselves to furnish drinking water while on the job in water bags, bought and paid for by them and taken from the job when they left, just as Hathaway had done.
Not one word of direction is shown either from defendant, Haake, or from his regular foreman, Gibson, touching any such custom. When asked about the supposed custom, Haake testified:
“Q. Was it your custom and state if you know whether it was a custom generally, for people in the construction business to furnish water bags and alarm clocks on the job? A. No, that is a good deal like furnishing lunch buckets. They furnish their own.”
There must be some limit beyond which the courts will not go in upholding figmentary theories of liability arising on the relationship of master and servant, or principal and agent. In sustaining recovery in the case at bar, it seems to me, the outboundaries of liability under the doctrine of respondeat superior are left far behind. The journey to Grants, begun at 10:30 p.m., and from which the two employees were returning when the accident happened shortly after 2 a. m., even if occasion for the trip be true as stated, does not make the master liable. The facts show neither obligation nor custom on his part to provide water or water bags and it is indisputable that the practice was otherwise. The trip to Grants after work hours to get them took Freeman and his helper on a personal mission for which the master was in no sense responsible. Cf. McDonald v. Denison, 51 N.M. 386, 185 P.2d 508; Paul v. Benavidez, 56 N.M. 328, 243 P.2d 1018, recently decided.
It is a familiar doctrine declared in the prevailing opinion, that of viewing the evidence in the aspect most favorable to the judgment, indulging all reasonable inferences and disregarding unfavorable testimony in order to sustain the verdict, when challenged as without substantial support. Williams v. Engler, 46 N.M. 454, 131 P.2d 267, and cases cited. It has not been overlooked in my consideration of this case. It is no more solidly imbedded in our jurisprudence, however, than that other rule which upholds the power of this court to overturn a verdict or finding based upon no evidence at all; testimony so inherently improbable as to be unworthy of belief; or otherwise unsubstantial. Phelan v. Phelan, 35 N.M. 36, 289 P. 996; State v. Armijo, 35 N.M. 533, 2 P.2d 1075; De Baca v. Kahn, 49 N.M. 225, 161 P.2d 630; Allen v. Allen, 52 N.M. 174, 194 P.2d 270; Ortega v. Koury, 55 N.M. 142, 227 P.2d 941; Southern Union Gas Co. v. Cantrell, 56 N.M. 184, 241 P.2d 1209. When the case is one calling for an application of the last mentioned doctrine very naturally the former rule, the opposite of this one, is rendered inapplicable. This is such a case. At the time of the accident Freeman and Lopez were on a personal mission and their employer was no more responsible for the actions of either than if the wreck had occurred while out hunting or fishing. CL McDonald v. Denison, supra.
It follows from what has been said that my views and those of the majority do not accord. Accordingly,
I dissent.
COORS, J., concurs.