"In order to hold the master liable for the acts of his servant it must appear that the act complained of was done to carry out the directions of the master, express or implied, and not to effect some purpose of the servant alone; or, in other words, that the act was done in furtherance of the master's business and within the scope of the servant's employment." Mere permission to use whether established by express or implied consent or by agreement of employment does not create liability on the part of the owner unless the use is in some way related to the scope of the employment or for the benefit or in the interest of the owner (Jones v. Knapp, 104 Vt. 5, 156 A. 399). Appellee not only would extend the "family purpose" principle of liability into a State which has rejected it but even beyond the family to an employer-employee relationship.
Utah: McFarlane v. Winters, 47 Utah 598 ( 155 P. 437, L.R.A. 1916D, 618); Vermont: Jones v. Knapp, 104 Vt. 5 ( 156 A. 399). Wisconsin: Crossett v. Goelzer, 177 Wis. 455 ( 188 N.W. 627).
Thus, contrary to the Becks' assertion, Arizona is neither alone nor clinging to an antiquated doctrine. See, e.g., Watkins v. Clark, 176 P. 131, 131 (Kan. 1918) (punishing defendant/parent under family purpose doctrine is not justified because a car is "not a dangerous instrumentality which the defendant let loose in the community"); Jones v. Knapp, 156 A. 399, 401 (Vt. 1931) (refusing to apply doctrine because such liability must depend on "settled common-law principles of master and servant or principal and agent"); Sare v. Stetz, 214 P.2d 486, 494 (Wyo. 1950) (declining to adopt doctrine because of its divergence from "clearly established" agency rules and noting that policy was better left to the legislature).
The first question to be determined is whether the findings support the conclusion that Richard was the servant of the plaintiff. In Jones v. Knapp, 104 Vt. 5, 13, 15, 156 A 399, a case where we declined to adopt the so-called "family purpose" doctrine, we referred to Doran v. Thompson, 76 NJL 754, 71 A 296, 91 LRANS 355, 131 Am St Rep 671; and Missel v. Hayes, 86 N.J.L. 348, 91 A 322. Those cases hold that to constitute the relation of master and servant as to third persons it is not essential that any actual contract should subsist between the parties or that compensation should be expected by the servant, and that while the relation of master and servant in its full sense invariably and only arises out of a contract between a servant and a master, yet such contract may be expressed or implied, and that the real test as to third persons is whether the act is done by one for another, however trivial, with the knowledge of the person sought to be charged as master, with his assent, expressed or implied, even though there was no request on his part to the other to do the act in question. This rule has been further approved in Maiswinkle v. Penn Jersey Auto Sup
In considering this exception we are not concerned with any negligence upon the part of Mrs. Purington, as her use of the automobile was not on any business of the plaintiff. Jones v. Knapp, 104 Vt. 5, 156 A 399; Fletcher v. Perry, 104 Vt. 229, 233, 158 A 679. We are only concerned with whether the evidence shows that the defendant operated his car in a negligent manner so as to proximately contribute to the accident, and that damages resulted.
" The statement in Slattery v. O'Meara, 120 Conn. 465, 469, 181 A. 610, that the family car doctrine "finds its limitation in the family relation," not necessary to the decision in the case, cannot be regarded as a ruling forbidding the application in such a case as the one before us of the underlying principles upon which that doctrine rests. The basis of liability is that one who owns and maintains a car for the general use of his household is held upon grounds of public policy and in analogy to the principles governing agency to make the use of the car for such purposes a part of his business, so that any member using it for those purposes under general authority to do so becomes his representative, for whose negligence he is responsible; that the car is at times used for business purposes does not matter; nor does liability depend upon any relationship of consanguinity between the owner and the person using it. Smith v. Jordan, 211 Mass. 269, 271, 97 N.E. 761; Jones v. Knapp, 104 Vt. 5, 9, 156 A. 399; Birch v. Abercrombie, 74 Wash. 486, 493, 133 P. 1020; Linch v. Dobson, 108 Neb. 632, 635, 188 N.W. 227; Denison v. McNorton, 228 F. 401, 405. This rule is in the nature of an exception to the general principle that one who permits another to use his car does not thereby become liable for the negligent conduct of that other, unless in driving it he is pursuing an agency or employment for the owner. Whiteman v. Al's Tire Service Garage, Inc., 115 Conn. 379, 382, 161 A. 519; Slattery v. O'Meara, supra, 470.