92 N.J.L. 450 | N.J. | 1918
Lead Opinion
The opinion of the court was delivered by
The question presented by the case is whether, under the circumstances, a verdict directed for the defendant at the circuit shall stand as the legally correct judgment.
In the sale of lots in the borough of Avalon, in Cape May county, the defendant found it advisable to use an automo
Arader was an itinerant real estate operator, who occasionally sold lots on the place, and obtained his commission for the specific work. In no sense was he in defendant’s service to exercise authority over Brown or the machine. The woman in the case figures as a nondescript. If she were a prospective purchaser of lots, the testimony failed to disclose the fact. The defendant’s only alter ego was one Weikheiser, but he gave no directions in this instance, and conceded no authority to Brown or Arader to leave the island with the ear.
The action is based upon the legal doctrine of responsibility, involved in the maxim "Respondeat superiorThe vicarious responsibility of a master is legally predicated, upon the presumed or proven existence of the relationship of master and servant. If the relationship cannot be shown to have existed at the time of the occurrence of the damage complained of, responsibility does not exist.
To determine its existence in this instance, inquiries as to Brown’s duties on the island, and the duties he was presumably performing in the estimation of others on this particular day, cannot supply us with the determining factor of responsibility in the case. As we have intimated, there is no testimony worthy of the designation, from which it can be reasonably inferred that what Brown did on that day was done in the scope or discharge of his master’s business. But per contra the uncontradicted fact permeates the entire case, that when at Egg Harbor Brown refused to comply with his master’s orders, his subsequent misconduct to the moment of the accident, was bufa continuance of his status of willful insubordination, upon which no implied contractual relationship, binding upon the master, can be legally predicated.
The master’s business and Brown’s business on the day of the accident undeniably was not at Avalon, but at Philadelphia; unless we are prepared to concede that the servant may put the master’s orders at defiance, and set up his own ipse dixit and malevolent will, as the controlling factor in the relationship.
This court has repeatedly, under variant circumstances, accepted and applied that doctrine. Evers v. Krouse, 70 N. J. L. 653; Doran v. Thomsen, 76 Id. 754; Missell v. Hayes, 86 Id. 348; Jennings v. Okin, 88 Id. 659.
In Evers v. Krouse (supra), the present Chief Justice, speaking for this court, and referring to the same principle enunciated in Holler v. Ross, 68 N. J. L. 324, says: “An act done by the servant while engaged in the work of his master, may be entirely disconnected therefrom, done not as a means or for the purpose of performing that work, but solely for the accomplishment of the independent malicious or mischievous purpose of the servant. Such an act is not, as a matter of fact, the act of the master iii any sense, and should not be 'deemed so as a matter of law. As to it the relation of master and servant does not exist between the parties, and for the injury resulting to a third'person from it, the servant alone should be held responsible.”
In Jennings v. Okin (supra), we reiterated the doctrine, in a ease where the son was directed by the father to use the automobile for a certain purpose, and deviating from his course to accommodate his friends, caused the damage in suit.
~\Yo there said that “Prom the moment it (the deviation) was undertaken, the relationship of principal and agent theretofore subsisting was severed.” In none of the cases cited do we find the conspicuous and accentuating factor here presented; the calculating, preconceived, malevolent intent to disobey and to deceive the master, and practically to appropriate his property to the use of the tort feasor, thus effectuating a palpably elementary trespass, cognizable as such at common law and suable in trespass de bonis asportatis. 2 Reeves Hist. Eng. Law 566 ; 1 Street’s Found. Leg. Lia. 229.
As well might the stranger, who with larcenous intent, appropriates a machine and does damage in its use, be classed
The act of the latter is essentially, and in its consequences would be similar to the felonious taking; the intent of the actor alone would differentiate it. No claim is made based on the testimony that the defendant, by word or act, recognized this malfeasance, or -was conscious of its perpetration, or had become actually or impliedly a party to it, so as to be bound by its disastrous consequences. On the contrary, the uncontradicted testimony evinces that he was deceived and misled, and unconscious of the fraud that was practiced upon him. In such a situation, no jury question can be reasonably evolved, unless we are prepared to concede as a rule of law, within the doctrine of “Respondeat superior," that an indefensible appropriation of a master’s property by a whilom servant, in the use of wdiich he damages another, shall subject the master to liability as a vicarious sacrifice, for the all but felonious offender.
The judgment wdll be affirmed.
Dissenting Opinion
(dissenting). In this case there was a direction of a verdict in favor of the defendant at the circuit. A motion to nonsuit at the close of the plaintiff’s ease was made, but was not argued or decided, and therefore is not before us.
In my judgment, the question presented at the close of the case was one of fact, and, therefore, under our decisions, it was for the jury and not for the court. That the question was a factual one I think sufficiently appears from the statements in the majority opinion, and it will, therefore, be unnecessary to review^ the facts.
The learned justice wdio wrote the opinion for this court says - that the vicarious responsibility of the master was legally predicated upon the presumed or proven existence of the relationship of master and servant, and if the relationship cannot be shown to have existed, responsibility does not exist. It is conceded that this is a correct statement of the
In my judgment, they do not apply. In Evers v. Krouse it was decided that the act done by a servant while engaged in the work of his master, but entirely disconnected therefrom and done solely for the accomplishment of a malicious or mischievous purpose of the servant, was not in any sense the act of the master. But it will he observed that this question was not decided by the court. The case was up on appeal from a verdict rendered by a jury, and the present Chief Justice, who wrote the opinion, observed that the only error assigned which required consideration, was directed at the charge of the judge to the jury in dealing with the question of the liability of the defendant.
In Doran v. Thomsen the ease was submitted to the jury upon the theory that the daughter of the defendant, in driving his automobile, was his servant, and the judge instructed
In Missel v. Hayes the case was submitted to the jury. After stating the facts Judge White, speaking for this court, said that it was urged that those facts were insufficient to form a basis for a finding that che son was acting as the servant of the father and within the scope of his employment as such, and that, therefore, the motions for a nonsuit or direction.of a verdict in the father’s favor should have been allowed under the case of Doran v. Thomsen. The learned judge distinguished the Doran case by saying that there the defendant’s daughter, whose negligent driving caused the accident, took her father’s automobile out for her own pleasure and that of friends who accompanied her, no other members of the family being in the car; that the only element in that case tending to show that the daughter was acting as the servant of the father was the hare fact that the father owned the automobile; that in fact the automobile was in the possession of a third party (who happened to be the owner’s daughter) who was using it. for her own and her friends’ pleasure, and not upon the owner’s business. The view which I have just expressed, namely, that on all of the testimony in the Doran case there was nothing that could be laid hold
In Jennings v. Okin the defendant’s son was directed by him to take his automobile to a certain locality on a certain errand. The question was whether the relationship of master and servant had not been severed by reason of the son taking two friends in the automobile to another locality. Only one of the alleged trial errors 'was deemed necessary for consideration by the court. It was an offer of testimony to show that the defendant’s son and agent made some statement as to the destination of the car when one of his invitees was about to enter ii. The exclusion of this testimony was held to be error upon the ground that it was part of the res gestae and a new trial was granted.
And so I say that none of these eases are authority for the proposition that a trial judge may assume to direct a verdict because uncontradicted testimony given by or on behalf of the defendant establishes his right to prevail; which it does, hut only if that testimony is believed, and the question of its belief or disbelief is strictly a jury function.
In Clark v. Public Service Electric Co., 86 N. J. L. 144. this court said (at p. 151) that a trial judge was only justified in directing a verdict upon a court question arising from the admitted or uncontrovertecl facts of a case, citing earlier decisions. I think that confusion has arisen in this case by a
In Schmidt v. Marconi Wireless Telegraph Co., 86 N. J. L. 183, this court said (at p. 185) that it could not agree that a certain' fact was so conclusively established as to make it one to be determined by the court rather than the jury. At the trial former Governor John W. Griggs testified for the defendant, and he was uncontradicted. The trial judge held that the proof was conclusively in favor of the defendant and directed a verdict in its favor. Chief Justice Gummere, speaking for this court, said in the opinion (at p. 186) that the testimony of a man whose character for truth and integrity is so universally known as that of Governor Griggs would always be accépted as a correct recital of the facts spoken to as he remembered them; but that it would hardly do to say that the character of a witness is the determining factor upon the question whether the facts testified to by him should be determined by the court or the jury; that it could not be that where the character of the witness for truth and veracity was known by the court to be unimpeachable the facts sought to be established by his testimony were to be determined by the court, but that where, in the judgment of the court, the witness is not entitled to full faith and credit, the facts sought to be proved by him must be submitted to the jury; that no such rule of evidence exists; that in every case where the issue depends upon the determination of facts the existence of which is not admitted, the jury and not the court must' determine them.
In Nell v. Godstrey, 90 N. J. L. 709, where the trial judge
The latest pronouncement of this court on this question was made in the opinion tiled on May 3d last, in the case of Second National Bank v. Smith, 91 N. J. L. 531. In that ease this court held that the credibility of a witness is always for the jury, and that where the issue depends upon facts, the existence of which is not admitted, even though testified to by a credible witness who is unchallenged, the question is for the jury. In that case the plaintiff had a verdict and the defendant appealed. One of the questions (at p. 864) was whether a notice of protest of the promissory note sued on was received by the defendant. He testified that he never received it, but said that if he had he would have forwarded it to the Fidelity Trust Company. One of their officers testified that they received it. This court said that it was not shown that it was sent to the trust company by any other person, and that the jury had a right to believe the defendant received and sent it and that he was mistaken in his assertion that it had not come to him, as the credibility of the witness was for the jury, citing Clark v. Public Service Electric Co. and Schmidt v. Marconi Wireless Telegraph, Co., supra
. That the trial judge dealt with the case as a factual question is apparent from his remarks in granting the motion to direct a verdict. He said that he was convinced that the undisputed facts were susceptible of but one rational interpretation, and that was, that the defendant’s chauffeur at the time of the accident was not acting within the scope of his authority. He might have charged the jury to that effect with an assertion that no matter what his opinion was as to what
For affirmance — The Chief Justice, Swayze, Parker, Bergen, Minturn, Black, Heppenheimer, Williams, Taylor, Gardner, JJ. 10.
For reversal — The Chancellor, Trenchard, Kalisch, White, JJ. 4.