Opinion op the Court by
Affirming.
‘ On January 26,1916, Gustave Nelson Keck, an infant seven years of age, was struck and killed by a motorcycle belonging to the Louisville Gas & Electric Company, and ridden by Walter Eoacb, one of its employes. This suit was brought by administrator of the decedent to recover damagеs for his death. The Louisville Gas & Electric Company defended on the ground that at the time of the accident, its co-defendant, Walter Eoach, was operating the motorcycle solely for his own purposes and not in the service or the performancе of any duty owing to it. At the conclusion of the evidence, the trial court directed a verdict in favor of the Louisville Gas & Electric Company, and thereupon the action was dismissed as to Eoach. Plaintiff appeals.
The facts are as follows: Since the month of May, 1912, Eoach had been in appellee’s employ as “an incandescent trouble man. ’ ’ The company employed both night and day men for this service. It was their duty to answer calls that might come from its patrons about trouble with the wires or lights in their residences. The company’s headquarters were at Seventh and Ormsby avenue. Eoach was a day man. His hours of service were from 7 o ’clock a. m. to 8 o ’clock p. m. In order that they might properly attend to their duties, the incandescent trouble men were furnished by the comрany with motorcycles. The company had a garage at Seventh and Ormsby avenue where its motorcycles and autos were kеpt when not in use. On the evening of the accident, Eoach quit work at 8 o ’clock p. m. A few minutes later he left the company’s shoр at Seventh and Ormsby avenue and started-on his way home riding one of the company’s motorcycles. He lived on Eighteenth street near Hill street, about a mile from Seventh and Ormsby avenue.
There was no competent evidence tending to show that the incandescent trouble men were authorized by the company to ride the machines home in order that they might answer calls while off duty. There was evidence, however, that Roach and thе other trouble men occasionally rode the machines home with the knowledge and acquiescence of the comрany’s employees superior in authority to them. It will thus be seen that the question for decision is whether the company is liable for the negligence of an employee while using one of its motorcycles with its knowledge and acquiescence solely for his own cоnvenience, while he was at liberty from the service and was not in the performance of any duty which he owed to the company.
We perceive no reason for applying the rule regulating the care and protection of dangerous instrumental!-, ties. Under that rule, railroad companies cannot entrust their engines, cars, or other dangerous instrumentalities to their employees еven for the purpose of going to and from their homes without being responsible for injuries caused by the negligent use of such instrumentalities. L. & N. R. Co. v. Walker’s Admr.,
There being no liability on the ground that the company entrusted Roach with a dangerous instrumentality, it follows that the company’s liability depends on whether the rеlation of master and servant existed at the time of the accident. The liability of the -master for the negligence of the servant рroceeds from the maxim “ qui facit per alium facit per se.”- In other words, where the servant is acting for the master and in his stead, the effect is the same as if the act hаd been performed by the master in person. The test in every case is, was the servant acting for his master or for himself? If he acts in the furtherance of his master’s business, he acts for the master. If he acts in the furtherance of his own business or pleasure, he acts for himself. Applying these principles to the case under consideration, we find that Roach’s working hours ended at eight o’clock p. m., and thе accident happened after that time. He was then at liberty from the service. In riding the motorcycle home, he used it solely for his own convenience and not for the purpose of performing any duty which he owed to the company. Under these, circumstances he was acting for himself and not for the company, and the company can not be held liable for his negligence. Nor dоes the fact that he was then using the company’s machine with its knowledge and acquiescence affect the question. Under the bеst considered authorities, the liability of the master does not turn on the fact that the servant was then using the master ?s property but on whethеr he was using it in the furtherance of the master’s business. Tyler v. Stephan’s Admr., supra; Sullivan v. L. & N. R. R. Co.,
Judgment affirmed.