I dissent. In my opinion Jury was not in the service of the company, and was not its agent for any purpose at the time of the accident.
The fact that he had been in its service during the preceding part of that day does not compel the conclusion that he was in its service at that time. The fact that he was then driving an automobile belonging to the company did not, under the circumstances appearing, make him its servant or agent. He was not driving it for, or on behalf of, the company, nor in its work or service. He lived at Mayfield and worked for the company as its secretary at its office in Palo Alto. He used the car after office hours in the evening and before office hours in the morning in going to and returning from his home in Mayfield. This was with the consent of the company, but not by its direction, nor in the transaction of its business. In contemplation of law he merely borrowed the car for his own use in so doing. He was not hired either to go to his home from the office in the afternoon, at the close of his work for the day, or to go from his home to the office in the morning to begin his work for the day, or to use the car in going or coming. That formed no part of his service; while so going and returning he was not in the service or under the employment of the company, and for his negligent acts in so doing the company was in nowise liable.
Ordinarily, he ceased to be in the service of the company the moment he left its office for his home. On the day of the accident, as he was about to leave for home, he was directed *Page 465 to go to Camp Fremont, which was in the opposite direction from his home, and there get a check countersigned, which he was to keep and bring to the office the next morning. While on his way to Camp Fremont, and while engaged in getting the check countersigned he was doubtless in the company's service. But when that task was completed his service for the company ceased for the day, so far as his goings and comings were concerned, and the company then ceased to be liable for his negligence in driving the car. It was no concern of the company how or by what route or means he got from Camp Fremont to his home, or whether he got there at all. It so happened that Camp Fremont was on the state highway a mile north of Palo Alto, while Mayfield was on said highway a mile or more south of Palo Alto. Consequently, in going home from Camp Fremont on the highway he had to pass through Palo Alto. If he had been turning into Palo Alto for groceries to take home, it would be conceded that the company would not be liable. If he had been directed to take a check to Los Altos, and after doing so had gone to his home, without passing Palo Alto, the same result would follow. Apparently, according to the majority opinion, the company's liability depended on the direction he had to go to get the signature. There is no evidence that he was intending to call at the office of the company on its business on his return from Camp Fremont. He had not been directed to do so, and as it was 5 o'clock in the afternoon and he had already left the office for the day, no reasonable inference to that effect is deducible. It is said he was going there for his overcoat. The evidence shows merely that he was turning down University Avenue toward Palo Alto in order to get his overcoat, which he had forgotten. It does not show that the overcoat was at the office. But it is immaterial where it was. The company did not engage him to look after his own clothes, and it was not liable for his negligent acts while he was doing it. The decision appears to be contrary to all authority. (See 2 Mechem on Agency, secs. 1896-1909, where the exact question is extensively treated. Also Mauchle v. Panama-Pacific I. E. Co.,37 Cal. App. 715, [174 P. 400]; Slater v. Advance T. Co.,97 Minn. 305, [5 L. R. A. (N. S.) 598, 107 N.W. 133]; 2 Corpus Juris, 853; 20 Am. Eng. Ency. of Law, 178; 26 *Page 466 Cyc. 1536; 6 Labatt on Master Servant, secs. 2274, 2283.)
Rehearing denied.
Angellotti, C. J., Lawlor, J., Lennon, J., and Olney, J., concurred.
Shaw, J., Wilbur, J., and Sloane, J., were absent.