An employer is liable where his employee causes injury by negligent operation of the employee’s automobile while in use in the prosecution of his employer’s business, when the employer knows or should know that the employee is so using it. Davidson v. Telegraph Co., 207 N.C. 790, 178 S.E. 603; Miller v. Wood, 210 N.C. 520, 187 S.E. 765; Pinnix v. Griffin, 219 N.C. 35, 12 S.E. 2d 667; 5 Am. Jur. p. 728, Automobiles sec. 393; 60 C.J.S. p. 1159, Motor Vehicles sec. 453.
In Davidson v. Telegraph Co., supra, a "Western Union messenger was using his own automobile to deliver messages for his employer. In Pinnix v. Griffin, supra, an insurance agent was engaged in the collection of insurance premiums for his employer. In Miller v. Wood, supra, a case cited by appellant as on “all-fours” with this case, the owner-operator of the automobile had supervision of the machinery at each of the defendant’s several plants, used his personal car in going from plant to plant in the course of his duties, and on the occasion of plaintiff’s injuries was on his way from one plant to another with parts and tools for the purpose of making repairs.
Haney being an employee of the Delivery Company, the test of its liability is whether Haney, while driving his personal car from the Cities plant towards the American plant to get the truck for use in his employer’s business, was engaged in the service of and was acting for his employer. Wilkie v. Stancil, 196 N.C. 794, 147 S.E. 296; Carter v. Motor Lines, 227 N.C. 193, 41 S.E. 2d 586.
An employee is not engaged in the prosecution of his employer’s business while operating his personal car to the place where he is to perform the duties of his employment, Wilkie v. Stancil, supra, nor while leaving his place of employment to go to his home, Rogers v. Garage, 236 N.C. 525, 73 S.E. 2d 318. Compare: Bray v. Weatherly & Co., 203 N.C. 160, 165 S.E. 332, and cases cited therein, in which the question was whether the employee sustáined an injury “by accident arising out of and in the course of” his employment within the meaning of G.S. 97-2 (f).
*457It is clear that if Haney were on bis way from bis borne to get tbe truck, wbicb bad to be loaded witb ice at tbe Oities plant before be could set out on bis delivery route, and while en route to tbe American plant bad injured plaintiff by tbe negligent operation of bis personal car, tbe Delivery Company would not be liable. Tbe question then is: should liability be cast on tbe Delivery Company solely on tbe basis of tbe circumstance that Haney, for no reason other than bis personal preference and convenience, chose to go directly to the Cities plant and do bis separate work there before getting bis own truck for tbe purpose of loading it and making deliveries therefrom along bis route? Our answer is, No.
In limine, we notice tbe fact that tbe Delivery Company bad no right of control over Haney’s use of bis personal car. Under the Massachusetts rule, this alone would absolve tbe Delivery Company. Reardon v. Coleman Bros., 277 Mass. 319, 178 N.E. 638. Nor did tbe Delivery Company have any responsibility for its condition, upkeep or operation. Eut these facts alone are not determinative under our decisions.
Decision here rests upon tbe ground that no duty of Haney to tbe Delivery Company contemplated or required that be use bis personal car in performance thereof. He was not directed to so use it nor did any necessity exist for its use. Mr. Freeman, bis superior, asked Haney why be didn’t get bis truck first and then go to tbe Cities plant. Tbe record discloses no answer apart from personal preference or habit on tbe part of Haney, uninfluenced by any benefit or value to bis employer. Tbe most that tbe evidence discloses is that Freeman acquiesced in Haney’s use of bis personal car in going to tbe American plant where bis truck was kept. Haney’s duty was to get tbe truck (this being bis only reason for going to the American plant) and then operate it in bis employer’s service and for bis benefit. Tbe time and mode of transportation to tbe American plant was up to Haney and a matter of indifference to bis employer. Haney chose to use his personal ear in bis own way in accordance witb bis personal preference or convenience. It was never used in connection witb tbe sale and delivery of ice or otherwise in tbe service of bis employer.
Cases in other jurisdictions relating to an employer’s liability for negligence of an employee while driving bis own car are numerous and different results are reached in divergent factual situations: See Annotations : 57 A.L.R. 739; 60 A.L.R. 1163; 112 A.L.R. 920; 140 A.L.R. 1150.
In tbe absence of evidence: (1) that tbe Delivery Company bad any right of control over Haney’s car or responsibility for its condition, upkeep or operation; or (2) that Haney’s car was used otherwise than for tbe one purpose of transporting himself to tbe American plant to get tbe truck kept there for bis use in tbe performance of bis duties; or (3) that Haney’s use of bis personal car was required, contemplated or necessary *458in the performance of bis duties; or (4) that Ms use of bis personal car was of benefit or advantage to bis employer or for any purpose other than his personal preference or convenience: we conclude that Haney, while driving his personal car towards the American plant, under the circumstances disclosed by plaintiff’s evidence, was not then engaged in the prosecution of the Delivery Company’s business. This conclusion renders unnecessary discussion of plaintiff’s further contention that the Delivery Company was a mere instrumentality, agency or department of the other corporate defendants and for this reason they too were liable for Haney’s negligence.
Accordingly, the rulings of the court below in allowing motions for judgment of involuntary nonsuit as to the corporate defendants are affirmed. A formal judgment, predicated on such rulings, should be entered in the court below.