(dissenting).
I dissent.
In addition to the facts related in the majority opinion, it is important to note that evidence adduced at the trial established:
(1) After the erection of the mill Bray, as superintendent, was paid by Fence-Craft *750on the same basis as all the other employees, i. e., by piecemeal — so much per picket.
(2) Fence-Craft had no supervision whatever over when Bray worked, where he worked or what type of work he would perform. This determination was made entirely by Bray himself as to whether he would supervise the work of the other employees at the plant or drive into the woods to buy timber, not only for pickets for Fence-Craft but also for poles for Penta Post.
(3) Bray’s car, which was the one involved in the accident, was purchased by Bray personally. Fence-Craft invested no money whatever, either by way of advancement or in any other manner, in the purchase of this automobile. The car was used by Bray for his personal use, for Fence-Craft, and for Penta Post, in buying timber for posts or pickets.
(4) Fence-Craft had no control whatever over the use of this car by Bray. Additionally the company did not buy any gas nor pay for any maintenance for the car.
(5) In order to obtain necessary parts to keep the plant in operation, as far as Fence-Craft was concerned Bray could order the parts by phone, by mail, or obtain them in any other manner over which Bray had complete control.
(6) Bray admitted that the real purpose of the trip to Lewiston was to have his wife’s teeth extracted, and as an “incidental part” he was also going to see about some belts and teeth for the saw-edger.
(7) Bray had known that this trip was going to be essential for not only was it necessary for his wife to get an appointment with the dentist but since a general anesthetic was to be administered before extracting her teeth, it was also necessary to secure an appointment with an anesthetist. All this was known by Bray at least two weeks prior to the date of the fatal trip.
(8) That at the time of the accident Bray was on a mission completely personal to himself, i.e., the delivery of pain-killing medicants to his wife at the home of the friends in North Lewiston, completely divergent from any route to Weippe, Idaho, the location of the Fence-Craft plant.
Under these facts the trial judge committed no error in granting Fence-Craft’s motion for a nonsuit or an involuntary dismissal, because the evidence was such that reasonable minds could not differ in concluding that (1) the master-servant relationship did not exist between Bray and Fence-Craft on the date in question; and (2) even if such relationship had existed the purpose of the trip was primarily personal to Bray and only incidental to the business of his employer. Koch v. Elkins, 71 Idaho 50, 225 P.2d 457; Hayward v. Yost, 72 Idaho 415, 242 P.2d 971; Baldwin v. Singer Sewing Mach. Co., 49 Idaho 231, 287 P. 944. For an exhaustive article on the holdings of various courts on the questions involved herein, see 52 A.L.R.2d 287, and particularly those cases gathered at pages 339-343.
It will be noted from the above-quoted article that several states have concluded that, on factual situations not too dissimilar from those presently at hand, as a matter of lava the purported principal has been absolved of responsibility for the negligence of its purported agent.
There is another reason why the holding of the trial court should be sustained. Prior to the trial of this matter, all parties, through their attorneys, approved and signed a pre-trial order, which was prepared by appellant’s attorney and executed by the trial court. The pre-trial order specifically provided that one of the contested issues of law was:
“Whether or not at the time and place of the accident the defendant, Myrl Bray was, as a matter of law, the agent, servant and employee of Fence-Craft and engaged in some purpose of duty in furtherance of his employment with Fence-
Once a pre-trial order is entered, it controls the subsequent course of action unless modified at the trial to prevent mani*751fest injustice. I.R.C.P. 16. After the conference is held, certain agreements made and the pre-trial order entered, the parties have ten days within which to object to the pre-trial order. Uniform District Court Rule No. 18. Thereafter the parties are bound by the order. Attorneys should be just as well prepared to participate in a pre-trial conference as they would be prior to participating in the trial itself, because their admissions, stipulations and agreements are as binding as if made in open court. Therefore this issue was properly submitted to the court for determination. The determination made by the trial court is sustained by substantial and competent evidence, as previously hereinbefore delineated, and appellant should not now be heard to complain that he, in fact, intended that these questions be presented to the jury for determination.
The order of the trial court granting Fence-Craft’s motion for a nonsuit or an involuntary dismissal should be affirmed and sustained.
DONALDSON, District Judge, concurs in this dissenting opinion.