Bloodgood v. Whitney

• Citation: 139 N.E. 209,235 N.Y. 110
• Parties: BLOODGOOD v. WHITNEY.
• Decision Date: 27 February 1923
• Court: New York Court of Appeals

235 N.Y. 110

139 N.E. 209

BLOODGOOD

v.WHITNEY. ^*

Court of Appeals of New York.

Feb. 27, 1923.

Action by Edith Bloodgood against Payne Whitney. Judgment for plaintiff and an order denying defendant's motion for a new trial were reversed, and the case was dismissed by the Appellate Division (200 App. Div. 56,192 N. Y. Supp. 383), and plaintiff appeals.

Modified by grant of new trial and affirmed.

McLaughlin, J., dissenting.

Appeal from Supreme Court, Appellate Division, First department.

William A. Hyman and James B. Henney, both of New York City, for appellant.

Murray G. Jenkins, William Dike Reed, and E. Clyde Sherwood, all of New York City, for respondent.

HISCOCK, C. J.

This action is brought to recover for injuries sustained by plaintiff in a collision between an automobile in which she was riding and one belonging to defendant and being driven by his chauffeur. While the contention that the accident was the result of negligence on the part of plaintiff's husband and driver instead of on the part of defendant's chauffeur was so forcibly supported on the trial that the Appellate Division has disapproved of the findings of the jury in favor of plaintiff on that issue, no argument is made upon this appeal that evidence was not produced making the issue one of fact. The only question which we are called on to consider is the one, now becoming very familiar, whether at the time of the accident defendant's car was being operated for his benefit and purposes or as matter of law was being used by the chauffeur for his personal adventures and in abandonment of his obligations to his employer so that the complaint should be dismissed. The facts by which this question is to be tested and solved are in our opinion conclusively established as follows:

The defendant at the time of the accident was living at his country place on Long Island. In the afternoon of a certain day the chauffeur was directed to take a passenger to the Pennsylvania Railroad Station in New York City, the plain implication of the order being that after completing this errand he should return to defendant's garage, whence he had started. Instead of doing this, however, after he had discharged his passenger he entered upon a series of excursions with the car for his own ends and pleasure. He first took a friend to some place in the upper part of New York, where he had no business. He then gathered together three or four companions and started out on a pleasure ride which took them to one or more restaurants, to defendant's country place which was exhibited by the chauffeur to his friends, and finally back to New York, whence they had started. The chauffeur then retired to defendant's city garage, not then being used, where he spent the night, and from which early on the following morning he started to return to defendant's country residence, which he had left the previous afternoon, and where he belonged. It was in the course of this return trip that the accident happened.

The Appellate Division have taken the view that when the chauffeur, in the course of his program of personal entertainment on the prior afternoon, reached defendant's country residence, he accomplished a return of the car to his employer and its owner, and that when, proceeding farther, he returned with it to New York City, he was guilty of tortious conduct, and then commenced an abandonment of his employer's...