The liability of the defendant for the negligence of Hicks his chauffeur in driving the defendant's automobile depends upon whether Hicks then was acting within the scope of his employment. Cain v. Hugh Nawn Contracting Co. 202 Mass. 237 239 88 N. E. 842. The jury could find that Hicks was permitted by the defendant to use the automobile in going to his dinner at McCarthy's house and thence to McCarthy's shop on his way to the school on Newbury street. Reynolds v. Denholm 213 Mass. 576 100 N. E. 1006. But on this occasion instead of going from McCarthy's shop directly to Newbury street by the usual route he took another and longer route apparently for the purpose of carrying one Lydon to or towards the place to which Lydon wished to go. It was while driving along Washington street with Lydon but in the general direction of the school that the accident happened.

If these were all the facts they would show plausible ground for the contention that when Hicks ran into the plaintiff he was not doing the defendant's work and was not acting within the scope of his employment but was going on an independent journey for a purpose of his own the accommodation of one whom he wished to befriend and not at that time for the purpose of going to the school to carry the defendant's children home. McCarthy v. Timmins 178 Mass. 378 59 N. E. 1038 86 Am. St. Rep. 490; Fleischner v. Durgin 207 Mass. 435 93 N. E. 801 33 L. R. A. (N. S.) 79 20 Ann. Cas.1291; Mitchell v. Crassweller 13 C. B. 237; Storey v. Ashton L. R. 4 Q. B. 476. In that event it of course would make no difference that he intended after having accomplished his own independent purpose to resume the performance of his duty to his master. But Hicks testified that he never was instructed by the defendant how to go to Newbury street and could go thither by any route that he chose. Ritchie v. Waller 63 Conn. 155 28 Atl.29 27 L. R. A. 161 38 Am. St. Rep. 361; Patten v. Rea 2 C. B. (N. S.) 606.

He testified further that after the happening of the accident he told the defendant 'the whole story just as it was ' and that the defendant said that he (Hicks) had a right to be there on Washington street that there was nothing for him to worry about. The jury could find that this was an admission by the defendant that as between himself and Hicks the latter properly was driving the automobile in this place in the performance of his duty to the defendant. If so the fact that Hicks has also the purpose of gratifying a private desire of his own in taking the route that he did was immaterial. Patton v. Rea 2 C. B. (N. S.) 606.

In its essential features this case belongs to the class of which Reynolds v. Denholm 213 Mass. 576 100 N. E. 1006 Ritchie v. Waller 63 Conn. 155 28.Atl. 29 27 L. R. A. 161 38 Am. St. Rep. 361 Whitman v. Pearson L. R. 3 C. P. 422 and Venables v. Smith 2 Q. B. D. 279 are examples rather than to that illustrated by such cases as McCarthy v. Tinimins 178 Mass. 378 59 N. E. 1038 86 Am. St. Rep. 490 Fleischner v. Durgin 207 Mass. 435 93 N. E. 801 33 L. R. A. (N. S.) 79 20 Ann. Cas.1291. Mitchell v. Crassweller L. R. 3 C. P. 422 and Storey v. Ashton L. R. 4 Q. B. 476.

The case rightly was submitted to the jury and there is no suggestion that full and correct instructions were not given to them.

Exceptions overruled.