Shefts v. FreeShefts v. Free
The opinion of the court was delivered by
This suit was brought to recover damages for personal injuries. The infant plаintiff was injured while riding in a Ford delivery truck owned by the defendant Morris Oatkin. Negligence of the defendants is alleged. The trial resulted in a directed verdict in favor of the defendant Morris Gatkin. A voluntary nonsuit was taken by the plaintiffs as to the defendant John J. Free. The essential facts, which are not controverted, out of which the action grew, may be summarized as follows: Louis Gatkin was driving the Ford delivery truck for his father, the defendant Morris Gatkin, but this faсt, i. e., the relation of father and son, is immaterial in the legal aspect of the case. The legal relation was that of master and servant.
The defendant Morris Gatkin was engaged in the butter and egg business, residing at No. 477 Jеrsey avenue, Jersey City. He was the owner of the Ford commerciаl automobile used for the delivery of his goods. His son, Louis Gatkin, about eighteen years old at the time of the accident in question, was the chаuffeur, making the deliveries and entrusted with the management of the automobile. The son was a member of his father’s household, receiving in addition tо his board about $7 per week.
On the evening of September 23d, 1925, the defеndant told his son to take the car to the garage situated on Jersеy avenue, between Railroad and Newark avenues, about four blоcks from the house. On his way to the garage, the son proceedеd to a drug store for medicine, located at Eighth and Grove streets, about ten blocks from the garage, passing the garage. After proсuring the medicine he immediately drove along Coles street to the gаrage. At the intersection of Coles street and Newark avenue, оn the return to the garage, a distance of about a block from the garage, the defendant’s car *579 collided with another automobile, causing the injuries complained of.
The defendant’s witness, Louis Gatkin, testified:
“I was on my way to the garage but I didn’t feel like walking to Eighth street for my medicine so I thought I would drive over” * * *.
“Q. You wantеd to take this trip to the drug store and then go to the garage ? A. Yes, sir.”
“Q. You wantеd to get that medicine before you went to the garage, is that right? A, Yes, sir.”
The triаl of the case resulted in a directed verdict in favor of the defendant Morris Gatkin on the ground that the servant Louis Gatkin was engaged in an emрloyment totally disconnected from that of his employer. This is so, from the time he reached the garage to which he was to take the сommercial automobile — from that moment, he was engaged in an occupation upon his own behalf, entirely disconnected from that of his employer. His use of the car was at the time of the acсident his own use. The relation of master and servant was thereby terminated. An exception was noted to the ruling of the trial court. This is made the sole ground of appeal. We think the ruling of the trial court must be affirmed. Thе case of Okin v. Essex Sales Co., 103 N. J. L. 217; affirmed, 104 Id. 181, is directly in point. In that case, the servant had gone bеyond the place of his errand for the master, when the accident occurred. The direction of a verdict for the defendant was sustаined by the Supreme Court and affirmed in this court. The cases in our reports on this troublesome question are cited in that case in the opiniоn of the Supreme Court, by Mr. Justice Trenchard. Another case in point in this court is that of Cronecker v. Hall, 92 N. J. L. 450. The case of Jennings v. Okin, 88 Id. 659, turned upon a question of evidence. The cases of Ferris v. McArdle, 92 Id. 580, and Dunne v. Hely, 104 Id. 84, are distinguished. Questions of fact to be determined by the jury werе involved in those cases.
Finding no error in the record, the judgment of the Hudson County Circuit Court is therefore affirmed.
*580 For affirmance — The Chancellor, Chief Justice, Trenchard, Parker, Kalisch, Black, Campbell, Lloyd, Van Buskiek, McG-lennon, Kays, Hetfield, Dear, JJ. 13.
For reversal — None.