Cronecker v. Hall

• Decision Date: 18 November 1918
• Docket Number: No. 67.,67.
• Citation: 105 A. 213,92 N.J.Law 450
• Parties: CRONECKER v. HALL.
• Court: New Jersey Supreme Court

105 A. 213

92 N.J.Law 450

CRONECKER

v. HALL.

No. 67.

Court of Errors and Appeals of New Jersey.

Nov. 18, 1918.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Caroline Cronecker against Charles R. Hall. Judgment for defendant upon a directed verdict, and plaintiff appeals. Affirmed.

Wescott & Weaver, of Camden, for appellant.

Howard L. Miller and Lawrence B. Reader, both of Camden, for appellee.

MINTURN, J. 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 automobile, for the purpose of conveying prospective purchasers about the island. Brown was his chauffeur, and his duties were limited to driving the people who visited the place on such business about the island, which was connected with the mainland by a bridge. The season at Avalon having terminated, the defendant went to Philadelphia to arrange for a trip to Florida. He instructed Brown, on a certain Friday, to bring the defendant's family to Philadelphia, in the automobile, and to leave the car at that city to prepare it for the southern trip. When the car reached Egg Harbor, Brown fancied that the machine was in some respect defective, and phoned to defendant at Philadelphia that he could proceed no farther. The defendant directed him to place the family on the next train to the latter city, and to bring the car there to be overhauled. Instead of obeying this direction in toto, Brown brought the machine on the same day back to Avalon, kept it there until Sunday, and on that day, without directions from any one, used it for driving one Arader and a woman companion out of the island, a distance of four miles into the country. The unfortunate, yet distinctive, incident of the trip was a race with another machine going at 40 or 45 miles an hour, and the resultant collision with plaintiff's machine, which was standing off the road purposely to avoid the approaching vehicles. So recklessly was the defendant's car driven that the collision was inevitable. The plaintiff's car was wrecked, and she was rendered unconscious from the impact, and was precipitated with her family to the ground.

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 car.

The situation then was this: A refractory chauffeur, deluding his employer, miles distant, into the belief that his car was unable to proceed to Philadelphia as ordered, but retracing his course, taking the car back to Avalon, and on the second day thereafter driving the pseudo crippled machine, containing his two invitees, into the country at a high rate of speed, until the collision terminated both his drive and his duplicity, for he thereafter escaped, and the efforts of the parties have been unable to procure his presence at the trial.

The action is based upon the legal doctrine of responsibility, involved in the maxim, "Respondeat superior." The 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 but a 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 conspicuous fact presents the basis for the legal principle applicable that from the moment Brown turned his machine to Avalon, instead of to Philadelphia, he ipso facto occupied the status of a tort-feasor, even as against the defendant. Pollock on Torts, 334.

This court has repeatedly under variant circumstances accepted and applied that doctrine. Evers v. Krouse, 70 N.J.Law 653, 58 Atl. 181, 66 L. R. A. 592; Doran v. Thomsen, 76 N. J. Law. 754, 71 Atl. 296, 19 L. R. A. (N. S.) 335, 131 Am. St Rep. 677; Missell v. Hayes, 86 N.J.Law 348, 91 Atl. 322; Jennings v. Okin, 88 N.J.Law 659, 97 Atl. 249.

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.Law 324, 53 Atl. 472, 59 L. R, A. 943, 96 Am. St. Rep. 546, 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 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 in 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 case 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.

We there said that—

"From 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 palpable elementary trespass, cognizable as such at common law and suable in trespass de bonis asportatis. Reeves, Hist. Law, 566; Street's Foundations Legal Liability, 229.

As well might the stranger, who, with larcenous intent appropriates a machine and does damage in its use, be classed within the scope of the doctrine of "respondeat superior," as the recalcitrant employe in this instance.

The act of the latter is essentially, and in its consequences would be similar to, the felonious taking; the intent of the act 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 which he damages another, shall subject the master to liability, as a vicarious sacrifice, for the all but felonious offender. The judgment will be affirmed.

The CHIEF JUSTICE, and SWAYZE, PARKER, BERGEN, MINTURN, BLACK, HEPPENHEIMER, WILLIAMS, TAYLOR, and GARDNER, JJ., concur.

The CHANCELLOR, and TRENCHARD, KALISCH, and WHITE, JJ., dissenting.

WALKER, Ch. (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 case 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 who 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 law, but that of itself does not decide the question as to whether the relationship was one of fact or of law. Again, he says that there is no testimony worthy of the designation from which it can be reasonably inferred that what Brown did, on the day in question, was done in the scope of discharge of his master's business. This is a clear intimation that there was testimony, even though slight, from which the agency might have been inferred. He then goes on and says that the ...