
    JOSEPH C. DONALDSON, RESPONDENT, v. LUDLOW & SQUIER, APPELLANT.
    Submitted March 18, 1920
    Decided June 1, 1920.
    1. Where a servant is acting within the scope of his employment, and in so acting does something negligent or wrongful, causing injury to a third party, the employer is liable to the third party, even though the acts done may be the very reverse of that which the servant was actually instructed to do.
    2. Where a person hires an automobile for use in his business, and puts it in the power of his servant to make an unauthorized use thereof, which resulted in the loss of the automobile, the employer is liable, not only for the servant’s negligence in an action of tort, under the doctrine of respondeat superior, but is also liable in an action upon his contract of bailment.
    On appeal from the Second District Court of Newark.
    Before Justices Swayze and Parker.
    For the respondent, Bernard V. McGovern.
    
    
      For the appellant, W. Howard Demurest.
    
   The opinion, of the court was delivered by

Swayze, J.

The defendant hired of plaintiff an automobile for the use in his business, and put it in charge of his driver or deliveryman. The driver finished Ms deliveries at. five-thirty p. m., stopped at his house for supper, left at six-thirty or six forty-five to go to the garage, passed the street on which the garage was. located, and went in a place to buy tickets for himself for a fight, as he says, intending to return to put the car in the garage afterward. He left the automobile in charge of a boy on one of the most frequented streets in Newark, unlocked; was gone about ten minutes, during which the automobile was stolen. There was a controversy as to whether a special contract was made that the defendant would be absolutely liable for loss, including loss by theft. It was left to the jury to determine what the contract was. If the jury found that the contract was as testified to by the witness Smith, it was open to the court to hold that there was an absolute responsibility. Whether there was or not it was open to the jury to find that the driver was negligent in leaving the automobile in the street as. he did; and this question was submitted to them by the trial judge. The principal controversy was whether under the circumstances the master was liable for the servant’s negligence, in view of the servant’s deviation from the direct road to the garage. The case resembles Ferris v. McArdle, 92 N. J. L. 580, but here there is nothing to .show knowledge or assent on the part of the master, and we must decide it on the general principles governing the master’s liability. We think it is controlled by what we said in Driscoll v. Carlin, 50 Id. 28, 30. We there quoted with approval the language of Kelly, C. B, in Bayley v. M. S. & L. R. R. Co., L. R., 8 C. P. 148, declaring the principle to he that where a servant is acting within the scope of his employment, and in so acting does something negligent or wrongful, the employer is liable, even though the acts done may be the very reverse of that which the servant was actually directed to do. In the present case, the servant was in the employment of the master until he had finished his work for the day and returned the automobile to the garage. These considerations suffice to justify the result below. But, as in Driscoll v. Carlin, there is another phase of the case which compels [he same result. The automobile was hired for the defendant’s business, and neither the defendant nor the servant was authorized to use it in ihe servant’s private affairs. The defendant could not escape responsibility for the servant’s using it for a different purpose or for a longer time than was agreed by the parties. Raynor v. Sheffler, 79 N. J. L. 340. He not only put it in the power of the servant to make this unauthorized use which resulted in the loss of the automobile, and might lie liable for the servant’s negligence in an action of tort under the doctrine of respondeat superior, but he was liable in an action upon his contract of bailment. Eor these reasons the first and second specifications of error fail. As to the third, as we understand the charge, what was left to the jury was what the terms of the contract were in fact, not what the proper construction of the language might be. The specifications that -the verdict was contrary to the clear weight of the evidence, and that the damages are excessive, do not present legal errors—it is only such errors that we are authorized to review.

The specification that there are no facts upon which the verdict may be sustained is unfounded. The facts sustain the verdict.

Let the judgment be affirmed, with costs.  