COMPTON, Justice.
This is an action against the master for damages allegedly caused by the negligence of the servant.
Appellant is a contractor engaged, among other things, in the construction of bridges. At the time material, he had four projects under construction, one of which was situated at New Laguna, north of Laguna, New Mexico. The foreman of the New Laguna project was 'Guy Gibson. His crew consisted of Hathaway, a shovel operator; Owen Daniel Freeman, a carpenter, and Amabil Lopez, his helper. Also, there were four unskilled laborers. On the night of November 11, 19S0, a truck driven by Freeman was involved in a collision with a motor vehicle operated by appellee near Grants, New Mexico, resulting in serious personal injuries and property damage to appellee.
The complaint charges the negligent operation of appellant’s truck, by Freeman, as a proximate cause of the alleged injuries. The answer denies all material allegations and pleads contributory negligence. A counterclaim for damages charges appellee with the negligent operation of his automobile. The cause was tried to a jury and following the verdict judgment was entered against appellant, Haake, from which the appeal is taken.
The -basic question is whether Owen Daniel' Freeman was acting within the scope of his employment at the time of the accident. We answer the question affirmatively. There is an abundant evidence in the record to support the conclusion.
Although the evidence is conflicting, it tends to establish the following facts which are summarized. On November 11, 1950, about noon, the foreman and shovel operator, Hathaway, were taken off the job, presumably by appellant, leaving Freeman and five other employees, none of whom lived at the work site, to complete the project which required about one week. Freeman and Hathaway lived together at San Fidel, some 15'miles west of Laguna. Their work hours were from 7:00 o’clock in the morning to 12:00 noon, and from 12:30 to 5:30 in the afternoon. They ate their morning and evening meals at ¡San Fidel but took their lunches with them. Transportation was furnished by appellant. Previous to' the time Gibson and Hathaway left the project, Gibson, the foreman in charge, provided drinking water for the employees, using water bags as containers: When Gibson and Hathaway left, however, they took all water bags with them. Freeman was the only skilled workman left on the job and when Gibson left, he was directed to supervise its completion. A tool truck used on the project was then provided by Gibson as a means of transportation for Freeman and Lopez. Believing it to be his duty to provide drinking water for the men on the project, Freeman decided to purchase other water bags. That evening, accompanied by Lopez, Freeman drove the truck to San Fidel, arriving there about 7:30 or 8:00 p. m. They bathed, changed clothes, and ate their evening meal after which they went to Grants to make the purchase, using the truck as a means of conveyance. Grants is about 15 or 20 miles west of San Fidel. They arrived there after closing time, nevertheless made inquiry at various service stations in an effort to purchase containers, but without success. While in Grants, each drank a bottle of ¡beer and a Coca Cola. On their return to San Fidel the truck, while being driven by Freeman, was involved in a -collision, causing appellee’s injuries. Neither negligence, contributory negligence, nor the extent of appellee’s injuries are issues for determination.
When a verdict is attacked as being unsupported, it is the duty of the appellate court to view the evidence in the most favorable aspect, indulging in all reasonable inferences to be drawn therefrom, and disregarding all unfavorable testimony and inferences, to sustain the verdict. Whether there is substantial evidence from which the jury might reasonably determine that Freeman was within the scope of his employment in his endeavor to furnish drinking water for the men, may be found from his own testimony. We quote:
« ijt iji %
“Q. Let’s get down to the time of the accident. Was it customary for the foreman or superintendent on these jobs that Haake was doing over the state and in Colorado, greater or smaller in extent to provide drinking water for the thirsty employees on those jobs?
“Mr. Modrall: May it please the Court, before the witness answers, we •object to the question unless it be shown that Mr. Freeman was familiar with all of these jobs. There has been no foundation laid for this question being asked as to what was customary on the rest of Haake’s jobs.
“Mr. O’Sullivan: I will withdraw the question with respect to the other jobs that Mr. Haake has been doing. We will just talk about the one at New Laguna.,
“Q. Was it customary for Mr. Gibson to furnish drinking water to the workmen during working hours? A. It was always customary for the one in charge to see that water was provided.
“Q. On the evening of November 11th, Mr. Freeman, what did you go to Grants to get? A. Water bags.
“Q. What were you going to do with the water bags, Mr. Freeman? A.
•I was going to provide water for the laborers.
“Q. On Mr. Haake’s job at New . Laguna, isn’t that right? A. That is right.
“ * * *
“Q. So it would take men working for Mr. Haake on an hourly basis a quarter of a mile to get a drink of water unless you or he or his other foreman supplied water in the bags right there on the job? A. Yes, sir.
“Q. That would be a lot of time off every time the men wanted a drink, wouldn’t it ?
A. Yes, sir.
“Q. So you supplied the water bags for Haake’s men to get a drink from without having to take so much time off, isn’t that right? A. That is right.
“Q. It was for Haake’s benefit as well as the men’s wasn’t it? A. Yes, sir.
«* t- *»
The rule is well established that where a servant is directed to accomplish a given result and no means are provided therefor, he is authorized to do anything which is fairly and reasonably regarded as incidental to the work specifically directed.
American Law Institute, Restatement, Agency, §*35, says:
“Unless otherwise agreed, authority to conduct a transaction includes authority to do acts which are incidental to it, usually accompany it, or are reasonably necessary to accomplish it.
“Comment:
“(b) The rule stated in this Section is one of most frequent and wide application.
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COMPTON, Justice.
This is an action against the master for damages allegedly caused by the negligence of the servant.
Appellant is a contractor engaged, among other things, in the construction of bridges. At the time material, he had four projects under construction, one of which was situated at New Laguna, north of Laguna, New Mexico. The foreman of the New Laguna project was 'Guy Gibson. His crew consisted of Hathaway, a shovel operator; Owen Daniel Freeman, a carpenter, and Amabil Lopez, his helper. Also, there were four unskilled laborers. On the night of November 11, 19S0, a truck driven by Freeman was involved in a collision with a motor vehicle operated by appellee near Grants, New Mexico, resulting in serious personal injuries and property damage to appellee.
The complaint charges the negligent operation of appellant’s truck, by Freeman, as a proximate cause of the alleged injuries. The answer denies all material allegations and pleads contributory negligence. A counterclaim for damages charges appellee with the negligent operation of his automobile. The cause was tried to a jury and following the verdict judgment was entered against appellant, Haake, from which the appeal is taken.
The -basic question is whether Owen Daniel' Freeman was acting within the scope of his employment at the time of the accident. We answer the question affirmatively. There is an abundant evidence in the record to support the conclusion.
Although the evidence is conflicting, it tends to establish the following facts which are summarized. On November 11, 1950, about noon, the foreman and shovel operator, Hathaway, were taken off the job, presumably by appellant, leaving Freeman and five other employees, none of whom lived at the work site, to complete the project which required about one week. Freeman and Hathaway lived together at San Fidel, some 15'miles west of Laguna. Their work hours were from 7:00 o’clock in the morning to 12:00 noon, and from 12:30 to 5:30 in the afternoon. They ate their morning and evening meals at ¡San Fidel but took their lunches with them. Transportation was furnished by appellant. Previous to' the time Gibson and Hathaway left the project, Gibson, the foreman in charge, provided drinking water for the employees, using water bags as containers: When Gibson and Hathaway left, however, they took all water bags with them. Freeman was the only skilled workman left on the job and when Gibson left, he was directed to supervise its completion. A tool truck used on the project was then provided by Gibson as a means of transportation for Freeman and Lopez. Believing it to be his duty to provide drinking water for the men on the project, Freeman decided to purchase other water bags. That evening, accompanied by Lopez, Freeman drove the truck to San Fidel, arriving there about 7:30 or 8:00 p. m. They bathed, changed clothes, and ate their evening meal after which they went to Grants to make the purchase, using the truck as a means of conveyance. Grants is about 15 or 20 miles west of San Fidel. They arrived there after closing time, nevertheless made inquiry at various service stations in an effort to purchase containers, but without success. While in Grants, each drank a bottle of ¡beer and a Coca Cola. On their return to San Fidel the truck, while being driven by Freeman, was involved in a -collision, causing appellee’s injuries. Neither negligence, contributory negligence, nor the extent of appellee’s injuries are issues for determination.
When a verdict is attacked as being unsupported, it is the duty of the appellate court to view the evidence in the most favorable aspect, indulging in all reasonable inferences to be drawn therefrom, and disregarding all unfavorable testimony and inferences, to sustain the verdict. Whether there is substantial evidence from which the jury might reasonably determine that Freeman was within the scope of his employment in his endeavor to furnish drinking water for the men, may be found from his own testimony. We quote:
« ijt iji %
“Q. Let’s get down to the time of the accident. Was it customary for the foreman or superintendent on these jobs that Haake was doing over the state and in Colorado, greater or smaller in extent to provide drinking water for the thirsty employees on those jobs?
“Mr. Modrall: May it please the Court, before the witness answers, we •object to the question unless it be shown that Mr. Freeman was familiar with all of these jobs. There has been no foundation laid for this question being asked as to what was customary on the rest of Haake’s jobs.
“Mr. O’Sullivan: I will withdraw the question with respect to the other jobs that Mr. Haake has been doing. We will just talk about the one at New Laguna.,
“Q. Was it customary for Mr. Gibson to furnish drinking water to the workmen during working hours? A. It was always customary for the one in charge to see that water was provided.
“Q. On the evening of November 11th, Mr. Freeman, what did you go to Grants to get? A. Water bags.
“Q. What were you going to do with the water bags, Mr. Freeman? A.
•I was going to provide water for the laborers.
“Q. On Mr. Haake’s job at New . Laguna, isn’t that right? A. That is right.
“ * * *
“Q. So it would take men working for Mr. Haake on an hourly basis a quarter of a mile to get a drink of water unless you or he or his other foreman supplied water in the bags right there on the job? A. Yes, sir.
“Q. That would be a lot of time off every time the men wanted a drink, wouldn’t it ?
A. Yes, sir.
“Q. So you supplied the water bags for Haake’s men to get a drink from without having to take so much time off, isn’t that right? A. That is right.
“Q. It was for Haake’s benefit as well as the men’s wasn’t it? A. Yes, sir.
«* t- *»
The rule is well established that where a servant is directed to accomplish a given result and no means are provided therefor, he is authorized to do anything which is fairly and reasonably regarded as incidental to the work specifically directed.
American Law Institute, Restatement, Agency, §*35, says:
“Unless otherwise agreed, authority to conduct a transaction includes authority to do acts which are incidental to it, usually accompany it, or are reasonably necessary to accomplish it.
“Comment:
“(b) The rule stated in this Section is one of most frequent and wide application. Under it, the appointment of a person to a certain position or a direction to him to do a specified act or to accomplish a specified result indicates, in the absence of countervailing circumstances, that the principal consents to the performance of acts on his behalf which are incidental to or usual or reasonably necessary in the position or in the doing of the act or in the accomplishment of the result.
“Illustration:
“(2) P employs A to obtain photographs illustrating Eskimo life. A finds it necessary, in order to obtain photographs, to employ an interpreter and to make small gifts to the Eskimos to induce them to permit 'him to make photographs. Nothing to the contrary having been manifested by P, A’s authority includes authority to employ an interpreter and procure gifts. * * *”
Further, Section' 229, op. cit., says:
“(1) To be within the scope of the employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.
“(2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered :
“(a) whether or not the act is one commonly done by such servants;
“(b) the time, place and purpose of the act;
“(c) the previous relations between the master and the servant;
“ * * *
“(f) whether or not the master has reason to expect that such an act will be done;
“(g) the similarity in quality of the act done to the act authorized;
“(h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant;
“(i) the extent of departure from the normal method of accomplishing an authorized result; and * * * ”
In view of the established custom, it would reasonably appear that the employer expected to provide such essentials as drinking water for his employees and that Freeman would malee provisions therefor.
Appellee called Freeman as an adverse witness under Rule 43(b), our Rules of Civil Procedure. Freeman testified that Gibson, the foreman, left him in charge, directed him to supervise the project and to use the truck for transportation. As previously stated, Freeman testified fully as to instructions given him by Gibson with regard to completing the job. It is argued that such testimony was hearsay since Gibson was unauthorized to delegate his authority to Freeman. Appellant attacks the admission of this testimony as if appellee had called some witness to testify as to statements made by Freeman as to the extent of his authority, overlooking the fact that Freeman was testifying as a witness.
It is stated in Restatement, Agency, § 285:
“Evidence of a statement by an agent concerning the existence or extent of his authority is not admissible against the principal to prove its existence or extent, * * * ”
Comment (a), however, states:
“The rule stated in this Section does not deal with testimony by an agent.
A person may testify as to the facts which it is alleged constitute • his authority, and his testimony may be introduced either by or against the alleged principal. * * * ”
The rule is stated in 4 Wigmore on Evidence, section 1078, p. 125, as follows:
“ * * * And of course nothing prevents the alleged agent from testifying upon the stand to the fact of his agency; * * * testimony is not offered as an admission.” (Emphasis ours)
Admittedly, Gibson was appellants’ superintendent on the project. He was authorized by Haake to employ his own crew, to accomplish the work at hand, and it will be observed that Freeman was retained as supervisor until the project was completed. We are of the opinion that Gibson was merely exercising his authority as superintendent in directing the work and that the testimony of Freeman relating to instructions given him by Gibson, were admissible.
The final question presentéd by this appeal is whether the trial judge erred in permitting appellee to call Freeman as an adverse witness, eliciting from him evidence against appellant and then dismissing the action as to Freeman.
The record discloses that at the dose of the case appellee moved for a dismissal as to Freeman, and appellant assented thereto. Subsequently, however, he moved for a mistrial on the ground that appellee had invoked the adverse party rule in had faith, merely to elicit otherwise objectionable testimony against appellant. As we understand the rule, parties to an action may be dropped by order of the court on motion of any party or of its own initiative at any stage of the proceeding on such terms as it may deem just. Rule 21, our Rules of Civil Procedure. While Freeman was a codefendant, it is not shown that he was hostile to appellant. On the other hand, the contrary appears from the evidence. The question must be left to the wise discretion of the trial judge.
The judgment will be affirmed and it is so ordered.
LUJAN, C. J., concurs.