Doran v. Thomsen

• Decision Date: 16 November 1908
• Citation: 71 A. 296,76 N.J.L. 754
• Parties: DORAN v. THOMSEN.
• Court: New Jersey Supreme Court

71 A. 296

76 N.J.L. 754

DORAN

v. THOMSEN.

Court of Errors and Appeals of New Jersey.

Nov. 16, 1908.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Patrick Doran against Hugo A. Thomsen. From a judgment of the Supreme Court, defendant brings error. Reversed, and a venire de novo awarded.

Collins & Corbin, for plaintiff in error.

Willard W. Cutler, for defendant in error.

VOORHEES, J. This action was brought to recover for personal injuries inflicted upon the plaintiff by being run into by an automobile at Morristown. A demurrer was filed to the declaration, originally consisting of three counts, and was sustained as to the first and third counts, but overruled as to the second count. The Supreme Court said: "It [the second count] in effect avers the relationship of master and servant, and that the accident was caused by the negligence of the servant while operating the motor vehicle for the master." Doran v. Thomsen, 74 N. J. Law, 445, 66 Atl. 807. The allegations of the second count are that the defendant possessed an automobile of great power capable of being operated at a speed of 60 miles an hour, and thereby it became the defendant's duty to use due care in its management while being operated along the public highways; yet the defendant, not regarding his duty, consented and allowed the said vehicle in his possession and control to be operated along the public highways at such a high rate of speed, to wit, at 60 miles an hour, that the vehicle was not in safe and proper control, and could not be properly managed by the person in charge, and that on the 22d of September he did negligently direct, consent, and allow the said vehicle in his possession to be operated by a member of his family so carelessly and without regard to the safety of the plaintiff and other persons in the highways at such a high rate of speed that the vehicle was not under control of the person operating the same, and then and there through the negligence of the person operating it ran Into and collided with the plaintiff, by means of which he was injured. If the defendant is liable for the negligent manner in which the vehicle was operated, then a jury question was presented, and, as to that negligence, the court properly submitted the case to the jury; but there is another and preliminary question to be considered, which arises upon motions to nonsuit and to direct a verdict for the defendant.

The question thus presented is whether upon the theory adopted by the Supreme Court in allowing the second count of the declaration to stand and upon which the case was tried the defendant can be held liable. That theory involves the application of the doctrine of respondeat superior arising out of the relation of master and servant or of principal and agent. The automobile in question was the property of the defendant. He lived at Madison and kept it on his premises. His daughter, about 19 years old, was accustomed to drive it. She used it sometimes twice a day. At the time of the accident she had three friends in the car with her, and was out for her own pleasure. No other member of the family was with her; so that the machine was then being run by the daughter upon no errand of the father. There was no evidence to show that defendant's daughter was employed by him to operate the machine, but she was allowed to do so from time to time and drove it whenever she felt like it, as also did her brother. The defendant's testimony was that he bought the machine "for our own use, the same as a person might buy a horse and carriage for the family"; that it was operated mostly by his son and daughter, and, when be was at home, they had to come and ask for permission to use it, but, when not at home, they sometimes took it without permission. On the day in question the father was absent in New York City, and did not actually know that his daughter was intending to use the automobile, but he knew that she did use it whenever she desired to do so. She on this particular day took it of her own accord without asking permission. This evidence was uncontradicted. The case was submitted by the trial court to the jury solely upon the theory that the daughter of the defendant in driving the machine was the defendant's servant, and instructed the jury that, unless they found that the daughter was such servant, the defendant would not be liable.

The mere fact of the relation of parent and child would not make the child the servant of the defendant. In McCauley v. Wood, 2 N. J. Law, 86, Chief Justice Kirkpatrick in a case brought against a parent for the trespasses of her sons as such said: "Upon principles of law one person can never be made liable for the trespass of another. It is true that, if one command or authorize his servant to commit a trespass, he is responsible himself, but then it is the trespass of the master according to the well-known maxim of the law, 'Qui facit per alium facit per se,' and it must be so charged in the declaration." To constitute the relation of master and servant as to third persons, it is not essential that any actual contract should subsist between the parties, or that compensation should be expected by the servant. While the relation of master and servant in its full sense invariably and only arises out of a contract between the servant and the master, yet such contract may be either express or implied. "The real test as to third persons," says Mr. Wood in his work on Master & Servant, p. 11, § 7, "is whether the act is done by one for another, however trivial, with the knowledge of the person sought to be charged as master with his assent express or implied, even though there was no request on his part to the other to do the act in question." It will be noticed that the act must be done by the one for the other. That was not so in the case at bar, and so there was no evidence upon which to find the existence of the relation if the daughter was not doing an act for her father. She was not even driving other members of the family. She was using the machine as a means of recreation and pleasure for herself and her own friends, and it would seem impossible to draw the conclusion that she could be regarded as the agent or servant of her father upon that occasion.

But there is still another ground. Assuming that the relation of master and servant existed generally between the father and daughter, yet it does not appear in this case that on the occasion in question she was acting as such servant within the scope of her employment. That the master is responsible for the negligence of his servant when acting within the scope of his employment is elementary law, but that he is not responsible if the negligence was committed by the servant when engaged in some private matter of his own is equally elementary. These two propositions are well stated in two New York cases. King v. N. Y. C. & H. R. R. R., 66 N. Y. 181, 23 Am. Rep. 37, where the court spoke as follows: "Where one person has sustained injury from the negligence of another, he must in general proceed against him by whose negligence the injury was occasioned. If, however, the negligence which caused the injury was that of a servant while engaged in his master's business, the person sustaining the injury may disregard the immediate author of the mischief, and hold the master responsible for the damages sustained." In Wyllie v. Palmer, 137 N. Y. 248, 33 N. E. 381, 19 L. R. A. 285, the court said: "The doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the result of such...