concurring in part and dissenting in part.
I concur in the holding that the record does not sustain appellants’ claim that the verdict was invalid because of an irregularity appearing on its face. However, I am unable to agree with the holding that there was substantial evidence to support the special finding of the jury that the accident here occurred at a time when Baker, the employee, was using the pickup within the scope of his employment.
Difficult as it may be under circumstances such as are present in the instant case for plaintiffs to establish by competent evidence more than the relationship of employer-employee, it is plaintiffs’ burden, nevertheless, to go further and establish by a preponderance of the evidence that the vehicle “was being properly used in company service at the time of the collision.” Husted v. French Creek Ranch, Inc., 79 Wyo. 307, 333 P.2d 948, 951; 9C Blashfield, Cyclopedia of Automobile Law and Practice, § 6136, pp. 139-140 (Perm.Ed.); 8 Am.Jur.2d, Automobiles and Highway Traffic, § 617, p. 168. To me, plaintiffs have not met that burden.
As I view it, the only basis upon which the special finding mentioned above can rest evolves around the saddle. Even assuming that there was evidence from which the jury could infer permission on the part of Sun Land & Cattle Co. to Baker for personal use of the vehicle, that did not of itself subject Sun to liability. In Restatement (Second), Agency 2d § 238, p. 527 (1958), it is stated:
“ * * * The master is liable only when the instrumentality is being used by the servant for the purpose of advancing the employer’s business or interests, as distinguished from the private affairs of the servant. * * *
See also McCauley v. Steward, 63 Ariz. 524, 164 P.2d 465; Gibbons & Reed Co. v. Howard, 129 Colo. 262, 269 P.2d 701; Barnett v. Inland Motor Freight, 44 Wash.2d 619, 269 P.2d 592. It was necessary further to show that Baker’s mission for recovery of his own saddle, in some fashion or other, served at least a dual purpose, i. e., that of Sun as well as his own. Standard Oil Co. v. Smith, 56 Wyo. 537, 111 P.2d 132, 135.
Turning to the evidence pertaining to the saddle, it is shown that on occasion Baker used the saddle in his employment. However, Baker was furnished a saddle by Sun for use in his work. There is no evidence that such saddle was unfit for use or that Sun even knew Baker was using his own saddle, much less requiring it to be done. Under the circumstances it seems to me that any benefit received by Sun from Baker’s preference for'his own saddle was so nebulous and inconsequential that it was without evidentiary value in determining the issue on the scope of employment. The use was no more reasonably related to his employment than the proverbial sack of “Bull-Durham” that is a part and parcel of Wyoming cowboy lore, or the rifle in the Barnett case. There is a further reason for reaching the same result. The testimony of Baker with respect to the purpose of his trip is uncontroverted and uncon-tradicted. His purpose was twofold: 1. To retrieve his saddle, which was left on the fence at the rodeo grounds on Sunday. 2. To sell the saddle. It occurs to me that any inference which might have been drawn from recovery of the saddle as serving a purpose of Sun was entirely negated by his preconceived plan to sell the saddle on the same trip because he needed the money.
In my view, when Baker left the ranch at 11 a. m. on the morning of the accident, after having finished his duties for the day, he took off on a venture of his own wholly outside the scope of his employment. As a matter of law, Sun was relieved of liability for Baker’s negligenec during that venture. 8 Am.Jur.2d, Automobiles and Highway Traffic, § 618.
I would reverse the judgment.