The opinion
Loughean, J.
(dissenting). Questions put to the plaintiff on his direct examination were answered by him in these words: “ Two fellows motioned to me to come ahead. I got off my truck. I seen that I couldn’t make it; I would rip the cover and scratch the paint off the truck. Two of them come over to me and told me, ‘ What kind are you chauffeur? Afraid to go under them trees? ’ So I told them,
‘
If I go under there it will be on my expense — ripping the cover and all that, down.’ One fellow walked over to the truck and grabbed hold of it — my truck. He grabbed hold of the knob of the truck and wanted
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to get in there and drive it. The fellow who was with Sisto. I pushed him away. That fellow hauled off and he hit me with his hand and then the minute that fellow hit me Sisto took the shovel and bit me over the side of the head.”
On these facts, I think Sisto’s attack upon the plaintiff cannot reasonably be connected with anything but Sisto’s own bad temper. For the sake of the argument, I grant that Sisto and his fellow-workman had undertaken concerted action to conserve the resources of their employer. Even on that large assumption, I think no jury could reasonably find that Sisto’s wholly irrational behavior was within the scope of his employment (See Restatement of Agency, § 229, Comment b; 2 Mechem on The Law of Agency [2d ed.], §§ 1977, 1978.)
I vote to affirm the judgment of the Appellate Division.
Rippey, Lewis and Desmond, JJ., concur with Conway, J.; Lottghran, J., dissents in opinion in which Lehman, Ch. J., and Finch, J., concur.
Judgment accordingly,