dissenting. I am unable to agree with the majority’s conclusion that Wiberg, the defendant’s employee, was not acting within the scope of his employment at the time the vehicle being operated by him was in collision with that of the plaintiffs. I agree fully with my brother Powers’ view that this is not a case which involves a deviation by Wiberg from the scope of his employment.
The majority rely upon Haining v. Turner Centre System, 50 R. I. 481, 149 Atl. 376, Colwell v. Aetna Bottle & Stopper Co., 33 R. I. 531, 82 Atl. 388, and Anderson v. Miller, R. I., 142 Atl. 616, to reach the conclusion that the issue *250involved herein concerns the question of deviation from the scope of one’s employment. An examination of the latter two cases discloses that each involved a situation in which an employee had been given specific instructions to follow a particular route in discharging the requirements of his employment. Raining is further distinguishable from the instant situation as it involved a violation by the employee of the express orders of his employer not to drive the employer’s truck, and the plaintiff failed to present any evidence that the employee was acting within the scope of his employment at the time of the accident. 50 It. I. at 482, 149 Atl. at 377. As is pointed out in the concurrence of Mr. Justice Powers, Wiberg was at liberty to arrange and alter his work schedule to suit his convenience, and in these circumstances a jury could have found that he had entered the scope of his employment upon leaving his home either for the office or for the debit area.
Generally, the fact that an employee uses his own vehicle to travel to the site of his employment is insufficient, in the absence of peculiar circumstances, to warrant a conclusion that the employee was then acting within the scope of his employment and that his employer is chargeable with responsibility for the negligent operation of the vehicle. See annotation in 52 A.L.R.2d 287, 303. The instant situation, however, presents such special circumstances.
Wiberg testified that defendant did not expressly require him to use his automobile while performing his duties. However, he did use his car when he worked for the company because he found himself able to thus more effectively discharge those duties. There was further testimony from defendant’s district manager that a $10 weekly allowance was paid only to the debit men on the road but that he did not know what was the basis for this allowance. In my opinion, such testimony is susceptible of a reasonable inference that a benefit accrued to defendant by reason of Wi*251berg’s use of his car while calling upon his clients within the territory assigned to him. In these circumstances, it is my opinion that it was properly left to the jury to determine whether, in all the circumstances, the employee entered into the scope of his employment when he left his home to proceed to the debit area. See Richards v. Metropolitan Life Ins. Co., 19 Cal.2d 236, 120 P.2d 650.
John F. McBurney, William J. Burke, for plaintiffs. Higgins & Slattery, Eugene V. Higgins, for defendant.I am convinced that when a jury finds in these circumstances that from the operation of an employee’s car between his home and his place of employment a benefit accrues to the employer, it must be concluded that such operation is within the scope of the employee’s employment. Where such is the case, I am persuaded that the protection of other travelers on the highway from injury resulting from the torts of such an employee should, as a matter of sound public policy, rest upon the employer. Accordingly, I hold that the question was one for the jury.