The plaintiff was run down in the streets of Buffalo by the defendant's automobile in charge of the defendant's servant. The question is whether the servant was engaged in the employer's business. *Page 275
The defendant is a manufacturer of motor cars. One Pratt, the manager of the sales department, was an invalid, and used one of the cars to travel between his office and his home. He did this with the defendant's knowledge. Sometimes the car, after leaving Pratt at home, was driven west to the defendant's factory. Sometimes, it was driven south to the defendant's repair shop or garage. This time it was going south. A seamstress in Pratt's service lived near the repair shop, but a little farther away. Pratt told the chauffeur to take the car to the shop and the seamstress to her home. The accident occurred before the shop was reached, at a point where the car must have passed though the seamstress had not been there. The plaintiff had a verdict which was reversed upon appeal. In the judgment of the Appellate Division, the car on its path to the garage was withdrawn from the defendant's service by the dual purpose of the errand.
We reach a different conclusion. The driver of the car was engaged in the defendant's business in taking it after the day's work to a place of storage for the night. He did not abandon the business merely because at the same time that he was attending to it he served some other purpose. How the case would stand if the collision had occurred in the course of deviation from the route, we need not now inquire. Deviation there never was. The unfulfilled intention of passing the repair shop and returning did not transform the trip in its entirety, and vitiate that part of the service which was legitimate and useful. For this conclusion, we think, the authorities are ample (Quinn v.Power, 87 N.Y. 535; Williams v. Koehler Co., 41 App. Div. 426;Riley v. Standard Oil Co., 231 N.Y. 301).
The defendant makes the point that the factory, and not the repair shop, was the only proper place of storage. The practice of the business permits another inference.
The judgment of the Appellate Division should be *Page 276 reversed, and that of the Trial Term affirmed, with costs in the Appellate Division and in this court.