I dissent. I cannot agree that it is a question of fact whether Morrison was acting within the scope of his employment at the time of the accident. If the facts are undisputed it is a question of law whether liability arises from such facts. (San Diego Trust & Savings Bank v. San Diego County, 16 Cal.2d 142 [105 P.2d 94, 133 A.L.R. 416]; Leis v. City and County of San Francisco, 213 Cal. 256, 258 [2 P.2d 26]; Gaston v. Hisashi Tsuruda, 5 Cal.App.2d 639, 642 [43 P.2d 355]; Bell v. McColgan, 68 Cal.App. 478, 482 [229 P. 858]; Osgood v. City of San Diego, 17 Cal.App.2d 345 [62 P.2d 195].) Ordinarily the court must decide such questions, although occasionally the task may fall to the jury. Thus in the field of negligence if the court does not establish a standard of reasonable conduct the case goes to the jury to determine whether the defendant has acted as a reasonably prudent man would act under the circumstances. The jury then has the burden not only of deciding what the facts are but of formulating a standard of reasonable conduct. (Clinkscales v. Carver, 22 Cal.2d 72, 75 [136 P.2d 777].) As a general rule, however, the court determines the law and the jury the facts, unless it appears that the issue is one that *612the jury eau determine better than the court. (See Brown, Law and Fact, 56 Harv.L.Rev. 899.) In the present case the court can determine better than the jury the extent of the vicarious liability to which the Arden Milk Company should be subject.
The majority opinion cites section 228, comment d, of the Restatement of Agency, which states that it is the function of the court to determine whether an act of a servant is within the scope of his employment “if the answer is clearly indicated,” but that otherwise the question is for the jury. If the facts are undisputed, however, it is solely a question of law whether acts are within the scope of the employment. If the question of law is a complicated one there is all the more reason that it should be determined by the court rather than the jury.
There is no dispute as to the facts in the present case. After reaching the place where he was to collect a bill, Morrison left to obtain a meal, transport Dolan home, and await the time for another effort to collect the bill. The undisputed evidence shows that it was no part of Morrison’s duty to take Dolan home, and that he did so merely as a personal favor. The accident occurred on the way back from Dolan’s home, some twenty blocks from the nearest point of Morrison’s assigned territory. It is my opinion that Morrison was returning from a personal mission and had not resumed his employment at the time of the accident and was therefore not then acting within the scope of his employment. (Gordoy v. Flaherty, 9 Cal.2d 716 [72 P.2d 538]; Peccolo v. City of Los Angeles, 8 Cal.2d 532 [66 P.2d 651]; Kish v. California State Automobile Assn., 190 Cal. 246 [212 P. 27]; Martinelli v. Stabnau, 11 Cal.App.2d 38 [52 P.2d 956]; Hanchett v. Wiseley, 107 Cal.App. 230 [290 P. 311]; Adams v. Tuxedo Land Co., 92 Cal.App. 266 [267 P. 926]; Helm v. Bagley, 113 Cal.App. 602 [298 P. 826].)
Edmonds, J., concurred.
Appellant’s petition for a rehearing was denied February 17, 1944. Traynor, J., voted for a rehearing.