Tbe appellant stresses for error these assignments :

1. Tbe refusal of tbe court below to grant (a) bis motion for judgment as of nonsuit made in apt time as required by statute, C. S., 567, and (b) bis request for peremptory instruction for negative answer to tbe second issue.

2. If there be no error in tbe ruling in either of those respects, tbe refusal of tbe court to give this special instruction requested in apt time: “If you find from tbe evidence and its greater weight tbat tbe defendant, Albert Grant, was instructed by bis eodefendant, Irving Kantor, to take two passengers from tbe city of Charlotte to tbe airport in Spartanburg, South Carolina, and return tbe car to tbe city of Charlotte and park same in tbe vacant lot at No. 115% South Church Street,- and you *588should further find that the said Grant, after taking the persons to Spartanburg, returned to Charlotte, and instead of parking the ear at the designated point, went on his own mission to North Charlotte for the purpose of visiting his family and ran over and killed plaintiffs intestate on his way back to the city of Charlotte, you will answer the second issue No/ and even though you should find from the evidence and the greater weight that he was on his way at the time of the injury and subsequent death of plaintiff’s intestate to park the said car at the said designated point, it will be your duty and the court so charges you to answer the second issue No.’ ”

Upon the evidence disclosed in the record we are of opinion and hold that the court properly ruled with respect to both the motion for judgment as of nonsuit and the request for peremptory instruction, but that there is error in the refusal to give the quoted special instruction as requested.

The underlying question raised by these' assignments is whether the servant, Grant, was acting within the scope of his employment by the defendant, Kantor, at the time of the injuries resulting in the death of intestates.

The owner of an automobile is not liable for personal injuries caused by it merely because of its ownership. Linville v. Nissen, 162 N. C., 95, 77 S. E., 1096; Martin v. Bus Line, 197 N. C., 720, 150 S. E., 501. The liability, if any, of the owner of an automobile operated by another rests solely upon the doctrine of respondeat superior. Leary v. Bank, 215 N. C., 501, 2 S. E. (2d), 570. This doctrine applies only when the relation of master and servant is shown “to exist between the wrongdoer and the person sought to be charged for the result of the wrong at the time and in respect to the very transaction out of which the injury arose.” Linville v. Nissen, supra; Martin v. Bus Line, supra; Liverman v. Cline, 212 N. C., 43, 192 S. E., 849.

The rule is well established that the master is responsible for the negligence of his servant which results in injury to a third person when the servant is acting in the scope of his employment or about the master’s business.

The rule is also well settled that the master is not responsible for the tort of his servant when done without his authority and not for the purpose of executing his orders, or while doing his work, but wholly for the servant’s own purposes and in pursuit of his private or personal ■ends. Dover v. Mfg. Co., 157 N. C., 324, 72 S. E., 1067; Bucken v. R. R., 157 N. C., 443, 73 S. E., 137.

A servant is acting in the course of his employment, when he is ■engaged in that which he was employed to do, and is- at the time about his master’s business. He is not acting in the course of his employment *589if be is engaged in some pursuit of bis own. Not every deviation from tbe strict execution of bis duty is sucb an interruption of tbe course of employment as to suspend tbe master’s responsibility, but, if there is a total departure from tbe course of tbe master’s business, tbe master is not answerable for tbe servant’s conduct.” Tiffany on Agency, p. 270; Robertson v. Power Co., 204 N. C., 359, 168 S. E., 415.

With respect to departure from employment, without consent of owner, ■“the general rule is that a servant in charge of bis master’s automobile, who, though originally bound upon a mission for bis master, completely forsakes bis employment and goes upon an errand exclusively bis own, .and while so engaged commits a tort, does not thereby render tbe master answerable for such tort under tbe rule of respondeat superior.” 5 Blashfield’s Cyc. of Automobile Law and Practice, section 3029.

Tbe question of owner’s liability for injury by automobile while being-used by a servant for bis own pleasure or purpose has been tbe subject ■of decisions by courts of many jurisdictions. These decisions are by no means harmonious under varying circumstances. See Annotations, 22 A. L. R., 1404; 45 A. L. R., 482; 68 A. L. R., 1055; 80 A. L. R., 727; 122 A. L. R., 863. Tbe trend of judicial decisions, however, is that tbe departure commences when tbe servant definitely deviates from tbe course or place where in tbe performance of bis duty be should be.' While there is conflict of authority on tbe subject, better reason supports tbe view that after a servant has deviated from bis employment, for purposes of bis own, tbe relation of master and servant is not restored until be returns to tbe path of duty, where tbe deviation occurred, or to .some place, where in tbe performance of bis duty, be should be.

Blashfield, in section 3051, Vol. 5, page 212, speaking with respect to returning from deviation, says: “Tbe majority rule, and probably tbe better view, is that tbe relation of master and servant is not restored until be has return to tbe place where tbe deviation occurred, or to a corresponding place, some place where in tbe performance of bis duty be ■should be,” citing decisions of courts in many states. In Humphrey v. Hogan, 104 S. W. (2d), 767, tbe Supreme Court of Missouri says that tbe weight of authority is well stated in this section. See, also, Annotations, 22 A. L. R., 1414; 45 A. L. R., 487; 68 A. L. R., 1056; 80 A. L. R., 728.

In Graves v. Utica Candy Co., 209 App. Div., 193, 204 N. Y. S., 682, it was held that when tbe driver returned from bis regular trip and went down tbe street on which bis employer’s place of business was located and got to a point where be could have driven into bis employer’s garage, but failed to do so, from that moment be abandoned bis employer’s service, and bis trip twenty-six miles north of bis employer’s place of business and bis return trip, occurred after be bad abandoned bis duty *590to his employer, were wholly without his scope of employment, and the-employer was not liable for injuries arising out of the accident, notwithstanding the fact that at the time of the accident the driver was on his-way hack to his employer’s garage.

In Virginia Ice & Freezing Co. v. Coffin, 166 Va., 154, 184 S. E., 214, the Court said: “Of course a servant is not required to return by airline from an errand performed, nor must he adopt the shortest practicable route. A detour in reason does not change his status, but an abrupt and unmistakable departure for some purpose of his own does.” In this case where a truck driver had been instructed to make a delivery and return to his employer’s factory and on his return trip had reached a point three or four blocks distant from the plant when he started to a point thirty-five blocks away in order to pay a personal bill, an accident, occurring after he had proceeded about twenty blocks on such journey,, the Court held that the relation of master and servant was suspended.

In Dairy Products Co. v. Defrates, 125 S. W. (2d), 282, 122 A. L. R., 854, the Texas Court said: “The test of liability is whether he was engaged in his master’s business and not whether he purposed to resume-it. It is equally true that Henderson owed the duty to his master of returning the car and resuming his employment and, while returning to-the zone of his employment, he was discharging that duty, but that fact, does not fix liability against the master. It was Henderson’s own wrong in driving away that created the duty to return, and in returning he was. but undoing that wrong. The return was referable to, and an incident, of the departure. He was no more engaged in his master’s business-while returning to, than while departing from his path of duty.”

Upon the evidence presented on this record we cannot hold as a matter-of law that the driver of the automobile was at the time of the accident-completely without the scope of his employment. The evidence is susceptible of the inference that in returning from Spartanburg the driver of the automobile had the choice of ways, one of which might reasonably take him by the home of his father and mother in going to the place-where he was directed to park the automobile. The evidence is also susceptible of the view that in returning from Spartanburg the driver of the automobile came within the zone of the terminus of his employment,, that is, in the vicinity of the place where he was directed to park the car, and that he then, for purposes of his own, drove the automobile two-miles in the northern direction to the home of his father and mother, and that at the time of the accident he was returning from this, his personal mission. If the jury should accept the latter view, then the-moment that the driver turned aside from his duty to drive the automobile to the place where he was directed to park, he departed from his-*591employment and remained outside of it until be returned to tbe point of departure. TJntil be reached tbat point, be was only returning to bis employment.

Tbe decision in Martin v. Bus Line, supra, in tbe light of similarity of facts, tends to support these principles.

We are not unmindful of what is said in Lazarus v. Grocery Co., 201 N. C., 817, 161 S. E., 553, with respect to deviation by tbe driver from bis master’s business. Affirmance there of tbe judgment below was specifically based on tbe authority of Jeffrey v. Mfg. Co., 197 N. C., 724, 150 S. E., 503. We find upon adverting to tbe record in tbe Lazarus case, supra, tbat there was judgment of nonsuit on tbe trial in tbe general county court of Buncombe County. Tbe Superior Court, in its appellate capacity, being of opinion tbat there was sufficient evidence to take tbe ease to tbe jury, reversed tbe judgment of nonsuit. Then, on appeal to this Court while defendant presented as tbe questions involved its contention tbat tbe servant bad completely departed from tbe scope of bis employment and was engaged on bis own business and for bis personal ends, tbe plaintiff made two contentions: (1) Tbat there was sufficient evidence to make out a prima facie case for tbe plaintiff under decision in tbe Jeffreys case, supra; and (2) tbat, conceding tbat tbe servant bad deviated from bis employment, be was at tbe time returning to bis employment. With respect to tbe first contention, tbe plaintiffs in their brief undertook to array in parallel tbe evidence in tbe instant case and tbe evidence in tbe Jeffreys case, supra. This Court agreed with plaintiff’s first contention, saying: “Tbe evidence should, therefore, have been submitted to tbe jury.” Then tbe Court stated tbat tbe evidence offered by defendant did not show such a deviation by tbe driver of tbe truck from defendant’s business as relieved it from liability to plaintiff as a matter of law under tbe principle of respondeat superior. Tbe statement which follows to tbe effect tbat although tbe driver of tbe truck bad deviated from tbe route over which be was directed by defendant to drive, be was returning to this route at tbe time of injury to plaintiff by bis negligence, was not necessary to tbe decision, and must be considered an incidental remark.

For reasons indicated there will be a

New trial.

dissenting: I am unable to agree with tbe result reached by tbe majority.

In tbe entire record — in tbe pleadings, admission of evidence, issues, instructions of tbe judge, tbe verdict, and tbe judgment — this Court has been unable to find positive error; only a negative error of omission rather than one of commission (a failure to give a requested special *592instruction) has been pointed out as reversible error. “Verdicts and judgments are not to be set aside for harmless error or for mere error and no more. To accomplish this result, it must appear not only that, the ruling complained of is erroneous, but also that it is material and prejudicial, amounting to the denial of some substantial right. In re Ross, 182 N. C., 477; Burris v. Lilaker, 181 N. C., 376.” Wilson v. Lumber Co., 186 N. C., 56 (57), quoted with approval in Collins v. Lamb, 215 N. C., 719 (720). This Court is without power to review the facts found properly by a jury (Wheeler v. Gibbon, 126 N. C., 811),. unless there has been (1) an error of law (2) prejudicial to the appealing party, the judgment should be affirmed.

The pertinent portion of the instruction, which is quoted in full in the majority opinion, was to the effect that if the jury found that Grant “returned to Charlotte, and instead of parking the car at the designated point, went on his own mission . . . and ran over and killed plaintiffs’ intestates on his way back to the city of Charlotte, . . . even though ... he was on his way at the time of the injury . . . to park the said car at the said designated point,” it would be the jury’s duty to free defendant Kantor of liability. Since it is not denied that-Grant had returned to Charlotte and was returning from a visit to his-family when plaintiffs’ intestates were killed, such an instruction would have eliminated the jury’s consideration of plaintiffs’ theory of liability. The trial judge, realizing this, in my opinion correctly refused to give-this instruction. An analysis of the trial theories of the prosecution and defense demonstrates the correctness of the trial judge’s ruling.

Plaintiffs insisted upon the correctness of two legal propositions, under either of which they would be entitled to recover: (1) That if Grant, returned to Charlotte by turning aside from the most direct route to the designated parking place and did so for the purpose of visiting his. family, the relationship of master and servant continued undisturbed until after plaintiffs’ intestates were injured; (2) that even if Grant, “returned to Charlotte and instead of parking the car at the designated point, went on his own mission . . . and ran over and killed plaintiffs’ intestates ... on his way back ... to park said car,”' the master-servant relationship, though broken by his departure on a mission of his own, was restored when he resumed his trip for the purpose of returning the car to the proper parking point. There is considerable authority to support both theories of plaintiffs. The first of these theories is not directly challenged here nor discussed by the majority opinion. It is because the granting of the special instruction approved by the majority would remove from the jury’s consideration this primary theory of plaintiffs’ case that I feel compelled to dissent. The majority view in the instant- case rejects the second of plaintiffs’' *593theories, thus sharply modifying if not entirely abandoning the earlier North Carolina rule. (See Duncan v. Overton, 182 N. C., 80, at p. 82, and Lazarus v. Grocery Co., 201 N. C., 817; 5 Blashfield, Cyclopedia of Automobile Law and Practice, section 3052, n. 13; 7-8 Huddy, Cyclopedia of Automobile Law, section 96, n, 94, both Blashfield and Huddy citing the Lazarus case, supra, as settling the North Carolina rule contrary to the majority opinion in the instant case. See, also, Jeffrey v. Mfg. Co., 197 N. C., 724.) Although I have some misgivings concerning the extent to which the instant majority opinion weakens, and brands as dicta, that portion of the Lazarus case, supra, to the effect that the master-servant relationship exists while a driver who has deviated from a direct route is returning to that route, I prefer to rest my dissent largely upon the much stronger ground that, in view of plaintiffs’ trial theories, the granting of the special instruction requested would have been reversible error.

The judge, in charging the jury, stated: “The plaintiffs in each instance say and contend that, prior to the injury and death, he (Grant) had never taken the car back to the place to which he was directed tO' take it, but that he had returned to Charlotte and while in Charlotte and on a byway, on his return, he stopped to see some of his people in North Charlotte, and that, having seen his people, he was returning by way of Brevard Street to the place called ‘Sportland,’ and that it was on his return to ‘Sportland’ to leave the car . . .; ■ that he was engaged in the performance of the thing that he was employed to do; that he was carrying the car to ‘Sportland’; that he had not taken the car to ‘Sport-land’ prior to that time; that there were a number of streets and avenues by which to approach the place called ‘Sportland’ in the city; that in completing the job which he was given to complete, the plaintiffs contend and say that he was not only the agent of defendant, Irving Kantor, but that at the time he was acting within the scope of his employment and in the completion of work entrusted to him to do.” The trial judge likewise charged, “Now, if the plaintiffs, in each instance, have satisfied you, by the greater weight of the evidence, that Irving Kantor employed Albert Grant to drive his automobile to Spartanburg, South Carolina, to take passengers and to return the car and place it at ‘Sportland’ and deliver the key to some person; that he carried the passengers to Spar-tanburg and returned with the car, and that upon his return he stopped by the home of some of his people in North Charlotte; that he left North Charlotte and was driving along Brevard Street toward the place called ‘Sportland,’ and that, so returning, he was engaged in the performance of what he was employed to do, and that such method of return could fairly and reasonably be deemed a proper means of performing the work or duties entrusted to him, then, the court charges you, that it *594would be your duty to answer tbe second issue 'Yes/ in suck instance, or in both, cases, if the plaintiffs, in both cases, have so satisfied you, by the greater weight of the evidence.”

These two excerpts from the charge were excepted to by defendant and argued in the brief of defendant. It is submitted that they were correct and that the propositions of law involved therein were without error. This likewise appears to be the majority view, as the majority opinion not only does not point out error in these portions of the charge, but specifically declares that the trial judge was correct in refusing to give a peremptory instruction to the effect that Grant, at the time of injury to plaintiffs’ intestates, was not acting within the scope of employment as servant of Kantor. Permitting the jury to consider the matters referred to in the above excerpts from the charge would have been inconsistent with the granting of the special instruction which the majority view approves) for the reason that the special instruction is, in effect, a peremptory instruction to find against plaintiffs on plaintiffs’ primary theory, to wit, that Grant, after returning to Charlotte, never so far deviated from the scope of his employment as to terminate the master-servant relationship. In my opinion, the trial judge was correct in refusing to give both the peremptory instruction as to the second issue and the special instruction which was practically equivalent to a peremptory instruction against the plaintiffs. In my opinion, the trial judge correctly submitted to the jury both the plaintiffs’ and the defendant’s theories, the plaintiffs’ theory being that Grant’s deviation from his duty as Kantor’s servant was so incidental that the master-servant relationship was not disturbed (Duncan v. Overton, supra), and the defendant’s theory being that Grant’s deviation from instructions was sufficient to constitute an independent mission of his own completely outside the scope of his employment and, as such, insulated defendant against liability (Martin v. Bus Line, 197 N. C., 720).

In addition to the North Carolina authorities cited above in support of plaintiffs’ position, the text authorities generally are to the same effect. “A mere deviation from the directed route, or the direct and usual route, does not constitute per se an abandonment of the master’s business, so as to relieve the master from liability for the negligence of the servant in driving. The fact that the deviation is made for a purely personal reason does not necessarily change this rule. Whether the extent of his departure from the area of his service was so unreasonable as to make of his act of deviation an independent journey of his own rather than a mere detour, or one incidental to his employment, is a question of degree, and ordinarily one of fact, unless the deviation is so great, or the conduct so extreme, as to take the servant outside the scope of his employment and make his conduct a complete departure instead *595of a deviation still incidental to his employment.” 5 Blashfield, Cyclopedia of Automobile Law and Practice, s. 3030. “A mere disregard of instructions and slight deviation from the line of the chauffeur’s duty, does not necessarily amount to a departure from employment, nor relieve the master from responsibility for his negligence, even though the route selected is not the shortest possible one.” 7-8 Huddy, Cyclopedia of Automobile Law, 9th Ed., s. 95. “To relieve the employer from liability, the deviation must be so substantial as to amount to a departure from the service, and must be for purposes entirely personal to the employee. . . . ‘In cases where the deviation is slight, and not-unusual, the court may, and often will, as matter of law, determine that the servant was still executing his master’s business. So, too, where the deviation is very marked and unusual, the court in like manner may determine that the servant was not on the master’s business at all, but on his own. Cases falling between these extremes will be regarded as involving merely a question of fact, to be left to the jury.’ ” 4 Berry, Automobiles, 7th Ed., pp. 620-621. To the same effect is Michie, The Law of Automobiles, N. C. Ed., s. 132. “A slight deviation, even on his own business, while on an errand for the master, will not render the chauffeur any the less the agent of the master, especially where the master’s implied consent could be inferred.” Babbitt, Motor Vehicle Law, 4th Ed., s. 1281. To the same general effect as the authorities cited above are 42 C. J., pp. 1110-1111, and 5 Am. Jur., pp. 714-715.

To summarize, the authority in support of the submission of plaintiffs’ theory that Grant’s deviation from employment did not destroy the master-servant relationship is ample and is impliedly approved by the majority opinion; hence, it would have been error, in my opinion, to have given the special instructions which the majority opinion approve. All of the evidence indicated that Grant returned to Charlotte and, before parking the car as he had been instructed, visited his family; hence, to have charged the jury that if it found that Grant returned to-Charlotte and instead of parking the car went on a mission of his own, the jury must answer the second issue “No,” would have been a peremptory instruction to find against the plaintiff. If the majority view is correct in stating that plaintiff made out a case for the jury, I am unable to perceive how a peremptory instruction to find against plaintiff can be approved. The case was, it seems to me, clearly one for the jury. The jury has passed upon the issues of fact and found for the plaintiffs; accordingly, in my opinion, the judgment should be affirmed.