Celidonio v. A. Z. Motors Co., Inc.

• Decision Date: 15 December 1938
• Docket Number: No. 428.,428.
• Citation: 121 N.J.L. 377,2 A.2d 877
• Parties: CELIDONIO v. A. Z. MOTORS Co., Inc.
• Court: New Jersey Supreme Court

2 A.2d 877

121 N.J.L. 377

CELIDONIO

v. A. Z. MOTORS Co., Inc.

No. 428.

Supreme Court of New Jersey.

Dec. 15, 1938.

Syllabus by the Court.

To relieve a master from liability for the act of his servant while engaged in the master's work, the act done by the servant must be entirely disconnected from the service; and where a servant, in the course of his employment, was authorized and required to drive his master's automobile to a certain place for a certain purpose, and having done so, started back to his master's garage to resume similar work for his master, but feeling sick (as the evidence tended to show) he went to his own home (in the same general neighborhood) for medicine, and then immediately resumed his return journey, and on the way injured the plaintiff,—in such case it is not the circumstance of deviation from the direct route back that determines the question of liability, but whether the act of deviation was so disconnected from the master's service as to exonerate him from liability, and that was a jury question.

Appeal from First Judicial District.

Court, Hudson County.

Action by Sage Celidonio against the A. Z. Motors Company, Inc., for damages resulting from the negligence of the defendant's agent in operating an automobile owned by the defendant. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment affirmed.

Argued October term, 1938, before TRENCHARD, PARKER, and PERSKIE, JJ.

Townsend & Doyle, of Jersey City (Cyril J. Galvin, of Jersey City, of counsel), for appellant.

Alfred E. Modarelli, of Union City, for appellee.

TRENCHARD, Justice.

This is an appeal by the defendant below from a judgment in favor of the plaintiff, rendered by the District Court judge sitting without a jury.

The plaintiff brought the action for damages sustained by him resulting from the negligence of the defendant's agent in operating an automobile owned by the defendant company.

The sole specification of error argued is that the court below erred in refusing to direct a verdict for the defendant, i. e, a motion for judgment, on the ground that no issue of fact was presented upon the question whether or not, at the time of the accident, the driver of the defendant's car was operating it on his own behalf and on his own business and not on the business of the defendant or on its behalf.

We think an issue of fact was presented upon that question, and that therefore the motion was properly denied. The authorities principally relied upon by defendant-appellant are Evers v. Krouse, 70 N.J.L. 653, 58 A. 181, 66 L.R.A. 592; Okin v. Essex Sales Co., 103 N.J.L. 217, 135 A. 821, affirmed 104 N.J.L. 181, 138 A. 922, and Wirth v. Gabry, 120 N.J.L. 432, 200 A. 556. But we believe these authorities are not in point. The Evers Case involved the use of the father's tool for mischievous purposes; in the Okin Case the employee disobeyed his employer's instruction and deviated from the business he was expressly directed to pursue; in the Wirth Case the driver was "on his own business and was acting solely for himself".

We think the testimony in the case at bar brings the case within the ruling of such decisions as Ferris v. McArdle, 92 N.J.L. 580, 106 A. 460; Dunne v. Hely, 104 N.J.L. 84, 140 A. 327; and Bedell v. Mandel, 108 N.J.L. 22, 155 A. 383. The evidence in the case at bar tended to show that, at the time of the accident, the defendant's car was being driven by one Robinson, who was employed (with one other man) by the defendant company to take care of its garage, service station and show-room at night. Among their other duties these men drove customers home and brought their cars back to the garage, and they, and they alone, were in full charge at night. The president of the defendant corporation, who was in active charge of its affairs, testified that Robinson was permitted to use the corporation's cars, if he had to,...