dissenting in part and concurring in part, with whom ROSE, J., joins.
Notwithstanding the fact that the place where Mrs. Buller worked was an isolated location, removed from any available housing, and despite the fact that Frailey paid her an additional two hours compensation because of the necessity of traveling a considerable distance over unpaved and dusty roads, the majority reject the existence of even a factual question as to whether she was within the scope of her employment at the time of the accident and hold as a matter of law that Frailey had no responsibility for her negligence. They do this on the basis of the general rule that an employer is not liable for his employee’s conduct while the latter is traveling to and from work in his own car. However, this “going and coming” rule is recognized by the majority, as well as many authorities, as being subject to exceptions, a prime example of which is where some special purpose of the employer is served or benefit received by him from the use of the car by the employee. This court does not seem to have had occasion to consider this rule and its exceptions in a negligence case where an injured person seeks to impute the negligence of the employee to the employer. However, in worker’s compensation cases it has applied the exception to reach the conclusion that an employee injured while traveling to and from work had sustained an injury which arose “out of and in the course of employment while at work * * § 27-12-102(a)(xii) W.S.1977. (Emphasis added.) See Matter of Willey, Wyo., 571 P.2d 248 (1977); Jensen v. Manning & Brown, Inc., 63 Wyo. 88, 178 P.2d 897 (1947); Standard Oil Co. v. Smith, 56 Wyo. 537, 111 P.2d 132 (1941). As the law was summarized in Willey, quoting from Jensen,
. . [W]hen other circumstances are injected such as where the employer himself as a part of the employment arrangement supplies transportation to and from the place where the duties of the employee actually commence, an exception to the general rule arises and a different result ensues.’ 178 P.2d at 900. “In In re Jensen we approved the application of this exception to injuries sustained in a motor vehicle accident by employees who drove their own cars to and from an oil-well site and were reimbursed by the employer on a mileage basis for the distance driven.” 571 P.2d at 250-251.
*739In Standard Oil Co., where the employee was killed while returning to his home from a vacation but had stopped en route to pick up two barrels of oil to be used in the course of the employee’s business at the place to which he was returning, the court answered affirmatively the question “whether the workman was injured while performing service within the scope of his employment.” In Jensen it was necessary for the court to find that the- sustained injuries were “a result of their employment and while at work,” § 72-106(k)(l) C.S.1945, and to avoid specific language therein that compensable injury should
“. . not include injuries by the employee occurring while on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which injury is not the employer’s negligence.” Id.
The statute in Willey, § 27-311(n), W.S. 1957, 1975 Cum.Supp., required an injury “arising out of and in the course of employment while at work . . . ” The plain and simple question before us is whether Mrs. Buller was “in the course of employment” and “at work” when she was driving home from her remote place of work.
I fail to see how one can be within the scope or course of his employment for worker’s compensation purposes and not similarly within such employment for negligence purposes. At least one other court has been able to distinguish the cases to its satisfaction. See Luth v. Rogers and Babler Construction Company, Alaska, 507 P.2d 761, 764 (1973), but I do not find the distinction satisfactory. Perhaps the best statement concerning the similarity in the two situations is set forth in decisions of the California courts. In Hinman v. Westinghouse Electric Company, 2 Cal.3d 956, 88 Cal.Rptr. 188, 471 P.2d 988, 991, n. 3 (1971) we find this statement:
“Although the test under the workmen’s compensation law of ‘arising out of and in the course of the employment’ (Lab.Code, § 3600), is not identical with the test of ‘scope of employment’ under the respon-deat superior doctrine * * * both fields of law are concerned with the allocation of the cost of industrial injury; and the two tests are closely related (see 2 Harper and James, supra, pp. 1377-1378).”
As stated in Rodgers v. Kemper Construction Co., 50 Cal.App.3d 608, 124 Cal.Rptr. 143, 149 (1975), citing Hinman,
“. . . the test for determining whether an employer is vicariously liable for the tortious conduct of his employee is closely related to the test applied in workers’ compensation cases for determining whether an injury arose out of or in the course of employment. * * * This must necessarily be so because the theoretical basis for placing the loss on the employer in both the tort and workers’ compensation fields is the allocation of the economic cost of an injury resulting from a risk incident to the enterprise.”
The latest decision I have found approving this statement is Brittel v. Young, 90 Cal.App.3d 400, 153 Cal.Rptr. 387, 391 (1979).
In Huntsinger v. Fell, 22 Cal.App.2d 803, 99 Cal.Rptr. 666, 668-669 (1972), it is said:
“Thus, while it may constitute pouring new wine into an old bottle, the ‘going and coming’ rule and its exceptions in the tort cases are concerned with the allocation of the economic cost of an injury resulting from a risk incident to business enterprise, and the social philosophy underlying the rule and its exceptions in the tort field is now substantially similar to that underlying workmen’s compensation.”
After discussion of the Hinman and other decisions, the court concludes:
“ * * * The indication is, therefore, that the rule announced in Smith v. Workmen’s Comp. App. Bd., supra, 69 Cal.2d [814] at p. 820, 73 Cal.Rptr. 253, 447 P.2d 365 is applicable to the case at bench notwithstanding Smith was a workmen’s compensation case.” 99 Cal.Rptr. at 669.
I must therefore reject as meaningless and unsupported assertion the majority’s statement (616 P.2d at 736) that
*740“[i]t is sufficient to point out that [previous decisions of this court] are all worker’s compensation cases and, as such, their holdings are not generally applicable in the negligence area. To be injured within the course or scope of one’s employment in the context of the worker’s compensation system is not the same thing as to be in the course or scope of one’s employment and cause injury to a third person who is foreign to the employee-employer relationship, which is the foundation of worker’s compensation system.”
I must also reject as meaningless the majority’s distinction between worker’s compensation and negligence holdings that “[o]ur general negligence theory is one based on fault —worker’s compensation and many other statutory schemes are of a no-fault nature.” While it is obvious that there must be fault on the part of the actor before there can be liability to an injured party, either from the actor or his employer, the imposition of liability upon the employer for the wrongs of his employee is not based on fault; the chances are very good that he is as innocent of wrong as is the victim of the employee’s negligence. Reasons for imputing negligence to the employer are legion and as pointed out by Dean Prosser in his Law of Torts, 4th Ed., § 69, p. 458 et seq., all reasons go beyond the notion of control
“. . .in holding the defendant liable even though he has done his best. Most courts have made little or no effort to explain the result, and have taken refuge in rather empty phrases, such as ‘he who does a thing through another does it himself,’ or the endlessly repeated formula of ‘respondeat superior,’ which in itself means nothing more than ‘look to the man higher up.’ ”
Responsibility of the employer without fault on his part is recognized in Fruit v. Schreiner, Alaska, 502 P.2d 133, 140 (1972). In that case the employer, an insurance salesman for Equitable Life Assurance Society, had been attending a sales conference to which out-of-state insurance experts had been invited, and the “Alaska salesmen were encouraged to mix freely with these guests to learn as much as possible about sales techniques . . . ” Scheduled events included cocktail parties. The defendant salesman had apparently indulged in some fairly serious “socializing” and decided that he should go to a nearby town where he thought he might find some of the experts with whom he was encouraged to socialize. Finding no such guests, he was in the course of returning to the town where the conference was being held when he was involved in an accident. The court makes these pertinent observations:
“Since we are dealing with vicarious liability, justification may not be found on theories involving the employer’s personal fault such as his failure to exercise proper control over the activities of his employees or his failure to take proper precautions in firing or hiring them. Lack of care on the employer’s part would subject him to direct liability without the necessity of involving respondeat superior.
“The concept of vicarious liability is broad enough to include circumstances ‘where the master has been in no way at fault; where the work which the servant was employed to do was in no sense unlawful or violative of the plaintiff’s rights; where there has been no delegation of a special duty; where the tortious conduct of the servant was neither commanded or ratified; but nevertheless the master is made responsible.’[1] This liability arises from the relationship of the enterprise to society rather than from a misfeasance on the part of the employer.”
Mr. Justice Boochever then discusses the pertinence of the concept of “ ‘scope of employment’ of the employee-tortfeasor.” He observes that
“[t]o assist in delineating the areas of tortious conduct imposing liability, it is helpful to consider what we believe to be the correct philosophical basis for the doctrine.”,
*741and after some discussion makes this statement:
“The basis of respondeat superior has been correctly stated as ‘the desire to include in the costs of operation inevitable losses to third persons incident to carrying on an enterprise, and thus distribute the burden among those benefited by the enterprise’.”2 502 P.2d at 141.
Pointing out that the concept whereby the enterprise bears the loss it has caused has been extended to products liability without fault of either employees or employers, the writer continues:
“The rule of respondeat superior, however, has not been extended to that length and is limited to requiring an enterprise to bear the loss incurred as a result of the employee’s negligence. The acts of the employee need be so connected to his employment as to justify requiring that the employer bear that loss.” Id. at 141.
The opinion on this phase of the case concludes that
“. . . there was evidence from which the jury could find that he was at least motivated in part by his desire to meet with the out-of-state guests and thus to benefit from their experience so as to improve his abilities as a salesman.” Id. at 142.
A jury finding of liability on the part of the employer was therefore sustained.
In the later case of Luth v. Rogers and Babler Construction Company, supra, we find the Alaska court reversing a ruling of the trial, court directing a verdict for the plaintiff upon the question of the employer’s liability and holding that it was a question of fact for the jury as to whether under the circumstances of the case the employee was acting within the scope of his employment. The employer Rogers was involved in a road construction project some 25 miles away from Anchorage where the defendant employee lived. The company paid every employee on the job, wherever he lived and however he proceeded to get to work, extra compensation of $8.50 per day. The accident occurred while the employee was returning to his home. Holding that there could be liability of the employer in these circumstances the court said:
“Until recently, this court maintained that respondeat superior issues would be resolved by applying the ‘right to control’ test and other factors delineated in the Second Restatement of Agency. Then, in Fruit v. Schreiner, we adopted a modified ‘enterprise theory’ of respondeat superior, without rejecting Restatement criteria.” 507 P.2d at 763.
The opinion further notes that in Fruit reference had been made to the similarity between Alaska workmen’s compensation policy and the enterprise theory of vicarious liability but that the court had not equated “the tort concept ‘in the scope of employment’ with the workmen’s compensation concept ‘arising out of and in the course of employment.’ ” For reasons that are not entirely clear to me the court rejects argument of the plaintiff based on workmen’s compensation cases. However, the court recognizes that exceptions to the going-and-coming rule exist in the field of tort law and holds that it is a factual question for the jury whether the employee was within the scope of his employment. The opinion points out that Rogers had not established a work camp at the jobsite thereby necessitating a drive of some 25 miles.
“Thus, a jury might reasonably infer that Rogers implicitly authorized its employees to commute by automobile and that such commuting was within the scope of Jack’s employment. The jury could have reasoned that the additional $8.50 remuneration induced Anchorage-based laborers to commute to Rogers’ out-of-town construction project, thus benefiting Rogers. Since the accident occurred during one of these commuting trips, it would not be unfair to require Rogers to pay for the Luths’ resulting injuries. On the other hand, the record discloses that Rogers paid its employees the additional $8.50 regardless of whether they commuted to *742work. Thus, the jury might reasonably infer that the $8.50 was merely a mileage or inconvenience allowance, and that Jack was not on company time while driving home from work.” 507 P.2d at 765.
Perhaps the leading case on the question of vicarious liability where the employer pays special compensation because of requirements of travel is the decision of the Supreme Court of California in Hinman v. Westinghouse Electric Company, supra. Since the facts relating to respondeat superior were unquestioned the court concluded as a matter of law that the doctrine is applicable “and that the trial court erred in its instructions in leaving the issue as one of fact to the jury.” 88 Cal.Rptr. at 192, 471 P.2d at 992. Injuries were sustained by the plaintiff as the result of negligence of an employee of the company who was driving home from a jobsite. Westinghouse allowed one and one-half hours pay and $1.30 travel expense for travel to and from the jobsites but had no control over the method or route of transportation used by the employee. In reaching its decision that the going-and-coming rule did not apply in this case the court cited negligence cases as well as an earlier compensation case, Kobe v. Industrial Accident Commission, 35 Cal.2d 33, 215 P.2d 736 (1950). The court there had held the going-and-coming rule inapplicable, reasoning that
“. . the employer may agree, either expressly or impliedly, that the relationship shall continue during the period of ‘going and coming’, in which case the employee is entitled to the protection of the act during that period. Such an agreement may be inferred from the fact that the employer furnishes transportation to and from work as an incident to the employment. *' * * It seems equally clear that such an agreement may also be inferred from the fact that the employer compensates the employee for the time consumed in traveling to and from work.”
The court in Hinman does not cavil about Kobe being a workmen’s compensation case, but says:
“The above cases indicate that exceptions will be made to the ‘going and coming’ rule where the trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force.” 88 Cal.Rptr. at 191, 471 P.2d at 991.
The majority view the case before us as one where there is the “mere payment of travel remuneration without more.” They conclude that Buller “was not actuated by a purpose to serve Frailey” at the time of the accident; they assert that Buller was “not furthering the business interests of appellee in any way”;' that it merely made her a “happy employee.” Concerning the travel arrangement in Hinman, the court said:
“There is a substantial benefit to an employer in one area to be permitted to reach out to a labor market in another area or to enlarge the available labor market by providing travel expenses and payment for travel time. It cannot be denied that the employer’s reaching out to the distant or larger labor market increases the risk of injury in transportation. In other words, the employer, having found it desirable in the interests of his enterprise to pay for travel time and for travel expenses and to go beyond the normal labor market or to have located his enterprise at a place remote from'the labor market, should be required to pay for the risks inherent in his decision.
“We are satisfied that, where, as here, the employer and employee have made the travel time part of the working day by their contract, the employer should be treated as such during the travel time, and it follows that so long as the employee is using the time for the designated purpose, to return home, the doctrine of respondeat superior is applicable. It is unnecessary to determine the appropriate rule to be applied if tfye employee had used the time for other purposes.”3 88 Cal.Rptr. at 192, 471 P.2d at 992.
*743The Alaska court was of the opinion that there was at least a question of fact as to whether the employer received a benefit. Luth, supra, 507 P.2d at 761. The site where Frailey was working was some 40 miles from the principal market for workers; those workers were required to travel some 40 miles over poorly maintained dirt roads to reach the construction site. In my view of the evidence Frailey was not trying to keep “happy” employees by permitting them to take short periods of time off for personal business as was the case in Miller v. Reiman-Wuerth Co., Wyo., 598 P.2d 20 (1979). It had the problem of enticing available workers to take a job. I believe that Hinman and Luth are very much in point and establish the rule that we should follow.
It is possible that I seek to extend the rule of vicarious liability, but as was said in Hinman, 88 Cal.Rptr. at 190, 471 P.2d at 990, quoting Prosser, Law of Torts, 3d Ed. (1964):
“. . . ‘the modern justification for vicarious liability is a rule of policy, a deliberate allocation of a risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business. They are placed upon the employer because, having engaged in an enterprise which will, on the basis of past experience, involve harm to others through the torts of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them; and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance, to the public, and so to shift them to society, to the community at large.’ (Prosser, Law of Torts, (3d ed. 1964) p. 471; fns. omitted.) [4] Dean Prosser’s citations suggest that the ‘modern’ justification has been accepted for more than 50 years.”
The California court goes on to state:
“Another leading authority also points out that the modern and proper basis of vicarious liability of the master is not his control or fault but the risks incident to this enterprise. ‘We are not here looking for the master’s fault but rather for risks that may fairly be regarded as typical of or broadly incidental to the enterprise he has undertaken. * * * Further, we are not looking for that which can and should reasonably be avoided, but with the more or less inevitable toll of a lawful enterprise.’ (2 Harper and James, The Law of Torts (1956) pp. 1376-1377; see also United States v. Romitti (9th Cir. 1966) 363 F.2d 622, 666 (applying California law).)” Hinman, supra, 88 Cal.Rptr. at 190, 471 P.2d at 990.
The majority seem to feel that the result they reach is consistent with the ruling and opinion of this court in the recent case of Miller v. Reiman-Wuerth, supra. That decision quoted extensively from the Restatement of Agency 2d (1958). I do not think that the principles which I here advance are in any way at odds with the holding in that case or with the Restatement. Thus it is said in § 228 that conduct of an employee is within the scope of employment only if:
“(a) it is of the kind he is employed to perform;
“(b) it occurs substantially within the authorized time and space limits;
“(c) it is actuated, at least in part, by a purpose to serve the master, and
U * * * »
Subsection (d) of the section related to liability for the use of intentional force, is not applicable here because it is conceded that Mrs. Buller was only negligent. Considering the other three elements, I submit that *744she was authorized to drive her car to work, the accident took place within the authorized time and space limits, and her travel was actuated principally, if not entirely, by a purpose to perform duties for Frailey at the plant site. Certainly, from the description of the road conditions which we have received, she was not driving for the fun of it. We said in Miller that the determination whether the employee is acting within the scope of employment is a question of fact for the jury; the definition of it or standard under which the fact would be determined was for the court: in a jury case it is incumbent upon the court to instruct the jury as to the meaning of the term “scope of employment.” 598 P.2d at 23. That was done in this case, and I think properly, by Instruction No. 8, to which no objection was taken. (Frailey objected only that the whole question of vicarious liability should not be submitted to the jury.) The issue has been decided by the jury and I think that its finding in this regard should not be disturbed.
The question of liability of the two companies, Champlin and Frailey, growing out of their voluntarily taking care of the road from time to time by sprinkling water and grading the same, is a difficult one. I cannot find where either company, having undertaken on occasion to keep the dust down, did anything in a negligent manner that increased the danger or resulted in a dangerous condition of which the travelers on the road would be unaware. I think that we could permit the judgment in this respect to stand only if we were willing to assume that once having undertaken to sprinkle, the companies were absolutely liable for dust which occurred any time it was not convenient for them to sprinkle. This would place a greater burden upon those defendants than I am willing to impose.
I therefore concur in the opinion of the court so far as it holds the two companies not liable for the dusty condition of the road and dissent from that portion which absolves Frailey from liability for the negligence of its employee, Buller.
. Quotation from Smith, Frolic and Detour, 23 Col.L.Rev. 716, 717 (1923).
. Quotation from Smith, Frolic and Detour, supra n. 1, 23 Col.L.Rev. 716, 718 (1923).
. I find no 'decisions either of the supreme court or court of appeals of California retreat-irig from the position taken in Hinman. In Ducey v. Argo Sales Co., 25 Cal.2d 707, 159 *743Cal.Rptr. 835, 602 P.2d 755, 764 (1979), reh. denied Jan. 17, 1980, we find the court sustaining an implied jury finding that the employee was not within the scope of her employment at the time of the accident, but nevertheless recognizing the exception to the going-and-coming rule “where the employer compensates the employee for travel time.” No such compensation had been paid.
. This quotation is substantially the same as that found in Prosser, Law of Torts, 4th Ed., p. 459.