#### J. H. REICH v. BERNARD M. CONE.

(Filed 4 November, 1920.)

Employer and Employee — Master and Servant — Scope of Employment— Negligence — Automobiles.

The owner of an automobile, who has lent it to his servant who used it for his own purposes, is not liable in damages for the servant’s negligence, when it appears that the servant was competent to drive the car, and was not engaged, at the time, in his employer’s service.

Appeal by defendant from Ray, J., at May Term, 1920, of Foesyth.

This is an action for damages sustained by plaintiff’s automobile caused by defendant’s automobile while being driven by one Clay Horn.' The defendant admitted the ownership of the automobile, and there was evidence for the plaintiff that her automobile was injured by the negligence of the driver of the defendant’s car, causing the-collision. The evidence for the defendant is that at the the time of the collision his car was being driven by his butler, to whom he had loaned it while off duty; the said butler was not his chauffeur, but he had another man for that duty; that Clay Horn was using the car for no purpose of the defendant, and was not in his employment at the time, but was using it solely in his own business and for his own pleasure; that Horn had worked for him for about three years, and he had loaned him the car 5 or 6 times; that he did not permit Horn to use the car whenever he wanted it, but had loaned it to him only on a few occasions, and had refused to lend it to him at several other times. There was evidence that Clay Horn had taken lessons in driving automobiles, and was not an incompetent driver.

John G. Wallace and R. M. Robinson for plaintiff.

J. S. Duncan for defendant.

*268Clakk, C. J.

Tbe court instructed tbe jury tbat tbe defendant, upon bis own evidence, was “responsible for tbe negligence of tbe man wbo was driving bis automobile, Clay Horn, provided tbe jury found tbat tbe collision was caused by tbe negligence of Clay Horn, as alleged, and tbat such negligence was tbe proximate cause of damage to tbe plaintiff’s automobile.” Tbis was error.

In Linville v. Nissan, 162 N. C., 99, tbe Court said: “Tbe owner of an automobile is not liable for personal injuries caused by it merely because of bis ownership”; and, again, “Even if tbe son bad been tbe servant of bis father in driving tbe machine, tbe father would not be liable for bis negligence unless tbe son was at tbe time acting in tbe scope of bis employment, and in regard to bis master’s business.” Tbis was quoted and approved in Bilyeu v. Beck, 178 N. C., 482, Allen, J., saying tbat tbe responsibility where tbe driver, though a child of tbe owner, is of mature years and experienced as a driver, is not dependent upon tbe ownership of tbe machine, but upon tbe principle of agency, express or implied, and distinguished those cases where tbe car is bought and being used for family purposes, when tbe injury occurs. See, also, Clark v. Sweanay, 176 N. C., 529.

When a motor car is used by one to whom it is loaned for bis own purposes, no liability attaches to tbe lender unless, possibly, when tbe lender knew tbat tbe borrower was incompetent, and tbat injury might occur. Armstrong v. Sellars, 182 Ala., 582; Erlick v. Heis, 192 Ala., 669; Campbell v. Arnold, 219 Mass., 160; Levyn v. Koppin, 183 Mich., 232; Freidbaum v. Brady, 128 N. Y., 121 (in which case tbe car was being driven by tbe owner’s chauffeur to whom it was loaned); Smith v. Burns, 71 Ore., 133; 29 Cyc., 39.

In Thorp v. Minor, 109 N. C., 152, it was held tbat where one loaned a horse to bis clerk to use for bis own purposes, and by bis negligence tbe horse was left unhitched, and, running away, caused damage, tbe owner was not liable, tbe clerk while using tbe horse not being in tbe lender’s employment or using it for bis purposes.

Error.