We have held that the correct test to be applied is not so much whether the conduct of the servant was a departure or a mere deviation from his line of duty, but whether, taking into consideration the purpose of this mission and the distance traveled, it could be said that the servant was stepping aside in some marked or unusual manner for some purpose wholly disconnected with his employment. Heard v. McDonald, 172 Okla. 180, 43 P.2d 1026. We are of the opinion that the evidence clearly shows that Sutton abandoned the master's mission when he left Peoria street to go one mile east after his son while on his way home, and the mere fact that he had some of the files of his employer, and had not gone by the office to check the mileage on his car, is insufficient to bring the employer within the rule of respondeat superior.
The instruction correctly states the law. See Heard v. McDonald, 172 Okl. 180, 43 P.2d 1026, 1027 (1935) (master not responsible for servant's acts until servant returned to the place where he abandoned the master's mission). Moreover, the court's instruction is virtually identical to the instruction that Hintergardt requested, see I R. tab 66, prop. instr.
" In De Camp v. Comerford, 134 Okla. 145, 272 P. 475, 477, where the court found abandonment, it stated that "he was engaged in a mission in no way connected with his masters' business, and solely for his own convenience or pleasure." In Heard v. McDonald, 172 Okla. 180, 43 P.2d 1026, 1027, the court found there was an abandonment of the master's business, but on the question of deviation, the court again affirmed the doctrine of the Carder case, quoting therefrom the following: "We think, however, that the correct test to be applied is, not so much whether the conduct of the servant was a departure or a mere deviation from his line of duty, but whether, taking into consideration the purpose of his mission, and the distance traveled, it could be said that the servant was stepping aside, in some marked or unusual manner, for some purpose wholly disconnected with his employment." In Retail Merchants Ass'n, etc. v. Peterman, 186 Okla. 560, 99 P.2d 130, 132, in which abandonment was found and which case appellant states is the latest expression of the Oklahoma Court, the court again said: "We have held that the correct test to be applied is not so much whether the conduct of the servant was a departure or a mere deviation from his line of duty, but whether, taking into cons
"In an action for damages sustained in a car collision, resulting from the negligence of the drivers of the two cars, where plaintiff seeks to also recover against the employer of the driver of one of the cars upon the theory of master and servant, the burden of proof is upon the plaintiff to show that the servant was acting for the master at the time of the injury; and proof of the existence of general employment alone, is not sufficient evidence to submit the issue of liability against the master to the jury." Also, see Drake v. Specht, 175 Okla. 414, 53 P.2d 235; DeCamp v. Comerford, 134 Okla. 145, 272 P. 475; Bascom v. Hodges, 184 Okla. 355, 87 P.2d 124; Crow v. Peters, 171 Okla. 433, 43 P.2d 93; Heard v. McDonald, 172 Okla. 180, 43 P.2d 1026. Proof of regular employment by the defendant, alone, is not sufficient to justify the presumption that Lovell was, at the time of the accident, acting in the performance and scope of his duty to the defendant.
Defendant urges, as an alternate view, that even if there was or had been a master and servant relationship between this owner and grandson, the uncontroverted proof showed a complete departure from the mission which plaintiff attempted to prove, and that the issues should have been withdrawn from the jury's consideration by reason thereof. The deviation rule, clearly stated in Carder v. Martin, 120 Okla. 179, 250 P. 906, and in Heard v. McDonald, 172 Okla. 180, 43 P.2d 1026, cannot be invoked here. These facts come plainly within the rule expressed in Phillips Pet. Co. v. Ward, supra, and in the earlier case of Lee v. Pierce, 112 Okla. 212, 239 P. 989. It has been held in these cases that the fact that the servant, in driving an automobile, deviates from the route he was directed by the master to take, does not relieve the master from liability for the negligence of the servant in operating the automobile during such deviation, unless the servant, in making such deviation, abandoned the master's business.
We think, however, that the correct test to be applied is, not so much whether the conduct of the servant was a departure or a mere deviation from his line of duty, but whether, taking into consideration the purpose of his mission, and the distance traveled, it could be said that the servant was stepping aside, in some marked or unusual manner, for some purpose wholly disconnected with his employment.See also, Heard v. McDonald, 172 Okla. 180, 43 P.2d 1026 (1935). When Gaines picked up his friend at the 1014 Club he immediately embarked on an entirely separate and independent mission of his own and in nowise connected with the mission of his master.