The respondents' petition for a rehearing, earnestly urging the record shows that at the time of the accident not only was Gross an employee of the company, but that he was acting for his employer at that time in the prosecution of the employer's business and in a vehicle whose use, though not authorized directly by the employer, was such as the employee was authorized to use.
In the main opinion we called attention to the fact that the employer is not necessarily relieved from liability because it did not furnish the car itself. That is not the controlling feature. "The action is deemed to be maintainable or not maintainable according as his use of the instrumentality was or was not expressly or impliedly authorized by the master" when the other circumstances involved are consistent with or require the inference that the tort complained of was within the scope of the servant's employment. Kennedy v. Union Charcoal Chemical Co.156 Tenn. 666, 672, 4 S.W.2d 354, 57 A.L.R. 733; quoting from Labatt, Mast. So.2d ed. p. 688.
In McCaughen v. Missouri P.R. Co. (Mo.App.) 274 S.W. 97, a servant, while on the master's business, used his individual automobile and injured the plaintiff. The court held, "the mere fact that an automobile was used by the servant on one occasion in the business of
the master, unaccompanied with any evidence of similar acts in the meantime, does not justify the inference that the servant was later authorized to use the machine upon the master's business."
Under the contract between Gross and the company Gross was to furnish his own automobile. It is true that the general manager of the Aberdeen district did testify that if Gross should happen to collect a debt outside of his own territory or in any other manner than authorized by his contract, the company would accept the money; but that is not the test of liability of the company.
The decisive points are that in the case at bar the employee was not on the master's business when the accident took place, and that not only was he not using the instrumentality authorized, but there is no proof that the company knew he was using Wenner's car, and it had no control over it. As shown in Gibson v. Dupree, 26 Colo. App. 324, 144 P. 1133, where the automobile causing an injury belonged to or was under the control of the master, and the servant while acting within the scope of his employment used such car contrary to instructions, the master would be liable; but such is not the fact here. And even in this case cited it is pointed out "that one may be in the service of another and yet at times attend to business or pleasure for himself, and acts done while the servant is at liberty cannot render the master liable; . . ." 144 P. 1136.
As we have shown, the liability of the master does not necessarily depend upon the record title to the automobile in question. That is not the test of liability; neither is the matter determined solely by the fact that at the time of the accident the servant may be engaged in the master's business. Even though a servant may use his own automobile in the service of the master, the master cannot be held liable for the torts of the servant committed in the use of the automobile, unless its use by the servant was expressly or impliedly authorized by the master. Tucker v. Home Stores (Tenn.) 91 S.W.2d 296.
We need not approve nor comment on the rule set forth in Reardon v. Coleman Bros. 277 Mass. 319, 178 N.E. 638, 639, viz.:
"The test to determine whether the owner while driving his own automobile is acting as proprietor or as servant of another is whether he is in control so that he can at any time stop or continue and determine
the way in which it shall be used or driven, not merely with reference to the result to be reached but with reference to the method of reaching that result even as to its small particulars. The vital inquiry concerns the right to control. If that right rests in the owner, he is acting as proprietor. If that right rests with another person, then he is the servant of that other person, who becomes responsible as master for the conduct of the owner. Shepard v. Jacobs, 204 Mass. 110, 112, 90 N.E. 392, 26 L.R.A.(N.S.) 442, 134 Am. St. Rep. 648; Khoury v. Edison Electric Illuminating Co. 265 Mass. 236, 238, 164 N.E. 77, 60 A.L.R. 1159; Bradley's Case, 269 Mass. 399, 401, 169 N.E. 156; Strong's Case,277 Mass. 243, 247, 178 N.E. 637." We cite it merely to show the extent to which some jurisdictions go.
In Wescott v. Henshaw Motor Co. 275 Mass. 82, 175 N.E. 153,155, the court upheld a directed verdict for the defendant even though the undisputed testimony showed the servant left his home in his automobile for the purpose of interviewing a customer of his employer and, though the employee received from his master an allowance for the expense of operating his automobile and a "flat weekly salary," and was subject to the direction of his employer "as to where he would go and what people he would see in reference to the sale of automobiles;" it being shown that the master had no right to direct the employee "in any particular way he should go, the course he should take, the speed of the vehicle, or his mode of driving the automobile." These were matters for the employee to determine. That is the situation here. The employee received a flat monthly salary; he received an allowance for the use of his own automobile; but even when on the master's business and using his automobile there is nothing to show that the master had any control over the automobile, could tell him where to go, or how to go, or how he should drive his car, or what speed he should use. In other words, if we were to adopt this rule, the employee in using his own car was still the proprietor of the car — not alone in the sense that he owned it, but in the sense that he controlled and directed it. If the company controlled and directed it, it would be immaterial in whose name the title stood, and in that case, so far as third persons were concerned, the master would be the proprietor of the vehicle,
and it being used in the master's service the master would be liable for its negligent use.
In the case at bar, in addition to the fact that the employee was not on the master's business at the time of the accident and the master had no authority to tell the employee how he should operate the car used, we have this very pertinent fact — that the employee was not even driving the authorized car. He was driving Wenner's car as a guest and solely, as he said, because Wenner was so incapacitated that he could not drive it himself.
The petitioners cite Vogel v. Nash-Finch Co. (Minn.)265 N.W. 350. The issue in the case cited was whether the employee, at the time of the accident, was on the employer's business. The employee was required to provide his own car and was paid mileage for its use. At the time of the accident he was in his own territory and using his own car. He and his companions were on a trip to see a customer of the employer and the employee actually did interview a customer. While on this trip, and at that time, the accident took place. There was a strong dissenting opinion as to whether even under those circumstances the company was liable; but in any event it is in no way applicable to the situation here. It is true that in this Minnesota case the court concluded that the fact the employee had other matters in mind at the time of the accident did not settle the point, the real issue being — was he engaged in the master's business at the time of the accident.
Petitioners cite Elliason v. Western Coal Coke Co. 162 Minn. 213, 202 N.W. 485; but there the evidence showed the driver of the truck was actually engaged in the master's business in going to the yard to deliver receipts and to haul more coal.
The case of Shotts v. Standard Oil Co. 181 Minn. 386,232 N.W. 712, is also cited. There the issue was whether the employee was actually on the business of the master at the time of the accident. The employer owned the car involved. The employee was driving it, and the sole issue was whether at the time of the accident he was engaged in the master's business. There was evidence to show that at the time of the accident the employee was driving the car in furtherance of the
purpose for which it was furnished and was thus engaged in the master's business in accordance with the terms of his employment.
The petition for rehearing is denied.
BURKE, Ch. J., and NUESSLE, MORRIS and CHRISTIANSON, JJ., concur.