dissenting.
I agree with the analysis set forth in the dissenting opinion of Mr. Justice Flaherty and, therefore, join that opinion. I write to address the majority’s emphasis upon appellee’s direction to its employees assigned to this job relating to smoking during their rest periods.
Both the majority and the dissent accept section 229(c) of the Restatement (Second) of Agency as instructive in this appeal. That section provides:
c. Acts of a personal nature. Although the servant is authorized to act, the master is not liable for his conduct unless the servant is in fact acting in the employment and for his master’s purposes. Getting ready to work or clearing away after work may be within the scope of employment. So, even such personal matters as eating and cleaning of a person may be so much a part of the work and under such control that it is part of the employment. This is true if the master assumes control over the general conduct of the servant during such period. If, however, such acts are for the personal convenience of the employees and are merely permitted by the master in order to make the employment more desirable, the acts are not within the scope of employment. As in other situations, the fact that the acts are done upon the master’s premises or with his instrumentalities is important but not conclusive.
Id.
The appellee, recognizing that his employees during the break periods were likely to smoke and realizing the danger posed by the presence of gasoline, directed them to take their free periods inside the building which was removed *401from the area where the gasoline pumps were situated. The majority, relying upon this exercise of control, concluded that the conduct causing the injury was conduct for which the employer should be held vicariously responsible. In my judgment such reasoning is overly simplistic and does not reflect the true intention of section 229(c) and will deter employers from taking extra precautions to assure the safety of the work place.
The danger known to the employer when the contract was undertaken was that of employees smoking in the area of the pumps. He properly instructed his employees to refrain from such conduct and they complied. Clearly, this direction did not charge the employer with responsibility for his employees smoking whenever an accident may have occurred and without regard to the factors causing the event. In this instance, if the employee, during the break, had been in a location off the work site and the plaintiff had approached him, the same unfortunate result would have obtained.
The thrust of section 229(6) must be read in view of section 235 which exempts conduct which is not for the purpose of serving the master.1 The mere fact that an employer gives a direction beyond the actual performance of the task to be performed, which is complied with does not provide an excuse to expand the employer’s liability for actions clearly beyond the scope of employment. The control exercised by the employer was to prevent injury from a flame being exposed to the gas pumps. Such an incident was avoided by that instruction. There is no basis for concluding that such a directive should expose the employer to any injury that might result from an employee’s careless smoking.
. Section 235 provides:
§ 235. Conduct Not for Purpose of Serving Master
An act of a servant is not within the scope of employment if it is done with no intention to perform it as a part of or incident to a service on account of which he is employed.