Demerest v. Edith Guild and Metropolitan Life Insurance Company

• Decision Date: 24 January 1935
• Citation: Demerest v. Edith Guild and Metropolitan Life Insurance Company, 176 A. 558, 114 N.J.L. 472 (N.J. 1935)
• Docket Number: 137
• Court: New Jersey Supreme Court
• Parties: KATE M. DEMEREST, FLORENCE MOORE, HELEN MOORE AND CATHERINE P. MOORE, PLAINTIFFS-APPELLANTS, v. EDITH GUILD AND METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, DEFENDANTS-RESPONDENTS

176 A. 558

DEMEREST et al.

v. GUILD et al.

No. 137.

Court of Errors and Appeals of New Jersey.

Jan. 24, 1935.

Appeal from Supreme Court.

Action by Kate M. Demerest and others against Edith Guild and another.From a judgment for defendants, plaintiffs appeal.

Reversed, with a venire de novo.

Ira C. Moore, Jr., of Newark, for appellants.

Frederick A. Pope, of Somerville, for respondentMetropolitan Life Ins. Co.

KAYS, Judge.

This is an appeal from a judgment entered in the Supreme Court.The case was tried at the Somerset circuit.At the close of the plaintiffs' case the judge directed a verdict of nonsuit in favor of the defendant the Metropolitan Life Insurance Company on the ground that no agency had been shown between the defendantEdith Guild, the driver and owner of the car, and the defendant the Metropolitan Life Insurance Company.

The action was for compensation for injuries sustained by the plaintiffs as a result of a collision between an automobile in which the plaintiffs were riding and an automobile owned and driven by the defendant, Edith Guild.It appears that Mrs. Guild was on her way home from her work when the accident occurred.She was employed by the defendant the Metropolitan Life Insurance Company as a visiting nurse in and about Union City.Her residence was Dunellen, N. J.She was paid a monthly salary for her services.The nursing supplies which she used for the treatment of policyholders of the defendant company were furnished by the company.According to her own testimony, it was necessary that Mrs. Guild use an automobile to perform her duties.She also testified that the district in which she worked was known as an "automobile district," which indicated that such district could not be reached by trolley car or bus and the distances between the cases which she was called upon to treat were such that one would lose too much time in travel unless such person used an automobile.She further said: "I couldn't go around the district without using the car."Mrs. Guild used her own car for her visits, and the company paid her $20 per month for the expense of operating it.The $20 was in addition to her regular salary.She kept the car at her home in Dunellen.It was her duty to report to the offices of the company in Union City each day and to receive instructions where to go in the performance of her duties.The accident occurred on a Saturday afternoon.Mrs. Guild started for her home in Dunellen immediately after visiting her last patient.

The sole question involved in the case is whether Mrs. Guild was in the course of her employment at the time the accident occurred.The accident occurred in North Plainfield while Mrs. Guild was proceeding toward her home.Appellant urges that she was still in the course of her employment for the reason that she was paid for the use of her car, that no place was furnished her by the defendant company in which to keep the car, and that her duties were such that she was compelled to use a car from her residence to the district and throughout the district in the performance of her duties, and that therefore she was acting for her employer until she returned to her home.There is no evidence in the case that the company compelled her to keep the car in any particular town or garage.It may be that she was justified in leaving her car anywhere she chose, and it seems to appear that the company allowed her to do just that thing.Such appears to be the evidence in this case, and we think that the facts are controlled by the case of Auer v. Sinclair Refining Co., 103 N. J. Law, 372, 137 A. 555, 54 A. L. R. 623.In the above case it appeared that the defendant, MacLachlan, was employed by the Sinclair Refining Company to devote his whole time and best endeavors to the sale of the company's products to factories in a specified territory in New Jersey; that he was authorized to use in that work his own automobile; that the company paid him for the upkeep and running expenses of his car weekly, in addition to his salary which was paid every two weeks; and that the company retained control and directed the work by daily telephonic or written communications with him from its New York office.Under these factsthis court held that he was a servant of the company and that he...