1. Hоwever it may be in other jurisdictions, in this state the test to determine whether a master is liable to a stranger for the consequences of his servant’s misconduct is to inquire whether the latter was doing what he was employed to do at the time he caused the injury complainеd of. If he was, the fact that he was not doing it in the way expected is immaterial. Rowell v. Railroad, 68 N. H. 358. But if at the time he did the act which caused the injury he was not acting within the scope of his employment, the master is not liable. Cordner v. Railroad, 72 N. H. 413; Turley v. Railroad, 70 N. H. 348; Searle v. Parke, 68 N. H. 311; Page v. Hodge, 63 N. H. 610; Andrews v. Green, 62 N. H. 436; Grimes v. Keene, 52 N. H. 330, 335; Wilson v. Peverly, 2 N H. 548.
At five o’clock on the day of the accident, McCauley, who was employed by the defendant as a chauffeur, took the automobile from the place where it was kept, drove to the defendant’s store, and awaited orders. He was told to get his supper and to be at the New City Hotel with the automobile at a quartеr before seven o’clock. After he had eaten supper, instead of taking the сar to the hotel according to the defendant’s order, he drove to West Manchеster, a mile or two distant from his boarding place and in an opposite direction from the hotel, for the purpose of calling upon a friend. At the time of the accident he had finished his call and was on his way to the hotel.
*112 Although, the evidence shows that McCauley was the defendant’s servant, and that he drove the automobile against the plaintiff’s horsе and caused the animal to run away, it also shows that he toot the automobile without the defendant’s permission and went with it on an errand of his own — that he was acting for himself, and not fоr the defendant, at that time. As it cannot be found from the evidence that McCauley was doing what he was employed to do at the time the plaintiff was 'injured, there was no error in thе order of nonsuit.
2. The plaintiff contends that the law of this state on the subject is not in harmony with the view which obtains in most common-law jurisdictions. That his contention is not well founded will appear from an examination of the authorities.
Perlstein
v. Company,
3. The defendant is not liable merely becаuse he was the owner of the automobile by which the plaintiff was injured. If the legislature can enact that an automobile or its owner shall be liable for any injury the driver may do to оthers whenever the driver would be, it has not seen fit to do so. Nor is there any force in the plaintiff’s contention that the owner of an automobile is liable to strangers in the same wаy and to the same extent he would be if it were a wild animal. If it were the law of this state that оne who has a dangerous element or a wild animal on his premises is liable for all the damage it does after escaping from his control, that rule would have no appliсation to the facts here presented. In this case the automobile did not escape from the defendant’s control; it was taken from him by McCauley. There is nothing inherently dangеrous about an automobile, any more than about an axe. Both are harmless so long as no one attempts to use them, and both are likely to injure those who come in сontact with them when they are used for the purpose for which they were intended.
The сase does not stand exactly as it would if the defendant had employed McCauley to care for his horse, and the latter had driven the animal to West Manchester and left it unhitсhed in
*113
tbe street while he made a call upon his friend. In such case, if the horse ran away and injured a third person, there would be a basis for the argument that McCauley’s wrongful act in driving the horse to West Manchester was the occasion, and his leaving it unhitched was the cаuse, of the injury.
Hayes
v.
Wilkins,
4. If it were conceded that McCauley was a reckless operator and that the defendant was aware of that fact, it could not be found that the continued employment of a careless servant by the defendant was the legal cause оf the plaintiff’s injury. Knowledge that McCauley was habitually careless in the operation of the automobile has no tendency to prove that the defendant ought to have known or anticipated that he would steal the vehicle, or use it for his own purposes contrary to the owner’s explicit order; and unless that fact is found, it cannot be said that the defendant’s fault in employing a chauffeur whom he knew to be reckless was the causе of the plaintiff’s injury.
The question whether the plaintiff could recover if the defendant had known McCauley was likely to use the automobile without permission is not in issue, and no opinion is intended to be expressed thereon.
Exception overruled.