94 N. J. L. Rodgers v. Great Atl. & Pac. Tea Co. his employment. But both of these theories seem to us to be refuted by the facts. Assuming that the defendant is to be chargeable with the result of Mr. Carlslund's act in placing the revolver where he did on a shelf on the left-hand side of the rear room, can it be inferred that it was not a proper place in which to keep a revolver; even, though, it belonged to the defendant and was kept in defence of the defendant's property? The revolver as it lay on the shelf was harmless. If, therefore, it was a proper place in which to keep the revolver, that fact, standing alone, could not be the basis on which to rest a judgment against the defendant for negligence. On the point of Brunges' negligence in handling or meddling with the revolver, the most that can be inferred from the testimony is, that Rodgers and Brunges were impliedly permitted to enter the rear room, where the revolver was kept, solely for the purpose of washing themselves. There is not a scintilla of evidence, or even a suggestion in the record, that the defendant permitted Brunges to handle the revolver or in handling and meddling with the revolver, he was doing anything, either to advance his master's interest or in the line of his employment. He was acting wholly without the scope of his duties and employment. There is no causal connection between the employment of Brunges and the injury to Rodgers. Rodgers' injury was caused by the unrelated act of a third person, for which the defendant is not liable to respond in damages. To render the master liable for the negligent act of the servant, the act must be done for the purpose of executing the master's orders and doing his work while actually engaged in serving the master. It is not enough to say that the injuries complained of would not have been committed without the facilities afforded by the servant's relation to his master. Doran v. Thomsen, 76 N. J. L. 754, 759. It was error for the trial court to refuse the defendant's motions. The judgment of the trial court is therefore reversed, to the end that a venire de novo may issue. CASES AT LAW DETERMINED IN THE COURT OF ERRORS AND APPEALS OF THE STATE OF NEW JERSEY MARCH TERM, 1920. EDWARD BIRTWISTLE, APPELLANT, v. PUBLIC SERVICE RAILWAY COMPANY, A CORPORATION, RESPONDENT. Argued March 3, 1920-Decided November 26, 1920. 1. An assignment of error upon the opinion of the court below is not allowable. 2. The opinion of an expert witness may be adduced by a hypothetical question which assumes the facts in accordance with the theory of the party propounding it, and which the evidence tends to prove. 3. The trial court repeatedly charged the jury that the plaintiff could not recover unless the defendant was negligent; and then, in response to a request, instructed the jury that if they found the plaintiff was not negligent he could recover, without, at the same time, instructing them that the defendant also would have to be negligent to warrant such recovery; whether this amounts to an expression in a charge which is to be interpreted by the context and the whole charge and is therefore not erroneous, or is an erroneous instruction not cured by a correct one unless the illegal one is withdrawn, quære. On appeal from the Supreme Court, in which the following per curiam was filed: Birtwistle v. Public Service Railway Co. 94 N. J. L. "The appeals from the judgments in favor of Francis Birtwistle and Minnie Birtwistle were not argued, and must therefore be considered as abandoned. These judgments are affirmed. "The only error in the case of Edward Birtwistle that need be considered is the refusal to strike out the testimony of Dr. Rathgeber that the pneumonia was the result of the accident. The doctor testified that he did not come into the case to treat the plaintiff until a month after he had received his injuries; that his knowledge of the kind of accident that had happened was derived from what the plaintiff's wife told him; that his knowledge of the time after the accident when the pneumonia. developed was derived from hospital doctors, who were very intimate friends of his and would keep him posted as to the progress of the case; that this information from the wife and the doctors was part of the information on which he based his opinion. The doctor's testimony as to the causal connection between the accident and the pneumonia was not elicited in answer to a hypothetical question embodying the facts, but was merely that the pneumonia set in four or five days after the injury and was caused by the injury. Neither Mrs. Birtwistle nor the hospital doctors were produced as witnesses. Obviously, Dr. Rathgeber's opinion as to the cause of the pneumonia has no substantial foundation, but rests on pure hearsay. If the statements of Mrs. Birtwistle and the hospital doctors were the basis of Dr. Rathgeber's opinion, they should have been produced as witnesses and subjected to cross-examination. The cause of the pneumonia was an important part of the plaintiff's case on the amount of damages, and the error was therefore prejudicial. The judgment in favor of Edward Birtwistle must be reversed, to the end that there may be a venire de novo." For the appellant, William P. Murphy. For the respondent, Lefferts S. Hoffman, Joseph Coult, Jr., and Leonard F. Tynan. 94 N. J. L. Birtwistle v. Public Service Railway Co. The opinion of the court was delivered by WALKER, CHANCELLOR. This suit was brought in the Essex Circuit Court to recover damages arising out of an accident which occurred in Newark. Plaintiff was driving with his three children in an automobile on Broad street, where a trolley car collided with it, inflicting injuries upon him and two of his children. On the trial verdicts were awarded to the three plaintiffs and judgment was entered thereon. Appeal was taken from the Circuit to the Supreme Court, but so far as it related to the judgment in favor of the children was abandoned, and the judgment, as to them, was affirmed. Defendant appealed from the Circuit to the Supreme Court on the following grounds: 1. That the trial court erred in charging the jury concerning negligence in the conduct of the adult plaintiff. 2. That the court erred in refusing to strike out the testimony of Dr. Rathgeber that an attack of pneumonia suffered by the plaintiff after the accident was the result of his injuries. The Supreme Court in its per curiam opinion stated that the only error in the case of Edward Birtwistle that need be considered was the refusal to strike out the testimony of Dr. Rathgeber that the pneumonia was the result of the accident, reversed the judgment of the Circuit Court as to Edward Birtwistle and left the question of the alleged improper charge undecided. Judgment of reversal being entered in the Supreme Court plaintiff, Edward Birtwistle, appeals to this court on two grounds, namely-1. Because the Supreme Court erred in holding that the testimony of Dr. Rathgeber that the pneumonia was the result of the accident should be stricken out. 2. Because the Supreme Court erred in reversing the judgment of the Circuit Court in favor of Edward S. Birtwistle. The second ground is correctly laid, and any reversible error made by the trial court which was before the Supreme Court is arguable here if properly raised in the record of the trial court. State v. Metzler, post p. 418. And it is the only proper assignment of error. State v. Verona, 93 N. J. L. 389. The first ground for reversal laid in this court is, in effect, an assignment of error upon the |