Groetz v. Day

• Decision Date: 06 January 1925
• Citation: 128 A. 334
• Parties: GROETZ v. DAY.
• Court: New Hampshire Supreme Court

128 A. 334

GROETZ

v. DAY.

Supreme Court of New Hampshire. Rockingham.

Jan. 6, 1925.

Transferred from Superior Court, Rockingham County.

Case by Jennie Groetz against John L. R. Day for personal injuries received in a collision between the defendant's automobile and a wagon in which the plaintiff was riding upon a public highway in Exeter. Trial by jury. At the close of the evidence a verdict was directed for the defendant, subject to the plaintiff's exception. Exception overruled.

Sleeper & Brown and W. H. Sleeper, all of Exeter, for plaintiff.

George T. Hughes, of Dover, for defendant.

SNOW, J. The defendant employed one Jackson, in consideration of the ride, to take the former's automobile from Danville to a garage at Exeter for repairs. Jackson was charged with no other duties for the defendant. Upon his arrival at the garage, finding the mechanician engaged, Jackson drove about town and returned later, when it was determined that the repairs would require new parts which could not be obtained for some days. He thereupon went to Little Boar's Head in North Hampton solely for a ride for himself and a friend who had accompanied him on the trip. This took him in the opposite direction from Danville. The accident occurred in the suburbs of Exeter upon the return trip from North Hampton. There was evidence of Jackson's negligence.

It conclusively appears that at the time of the accident Jackson was not doing what he was employed to do, but was engaged in the independent undertaking of a pleasure trip for himself and his friend. At the time of the accident he did not represent the defendant either as servant or as agent, but was acting solely for himself. Under similar circumstances it has repeatedly been held that the owner of the automobile is not chargeable with the negligence, of the driver. Danforth v. Fisher, 75 N. H. 111, 112, 71 A. 535, 21 L. R. A. (N. S.) 93, 139 Am. St. Rep. 670; Dearborn v. Fuller, 79 N. H. 217, 218, 107 A. 607; Roulias v. Crafts, ante, 81 N. H. 107, 108, 124 A. 194; Moulton v. Langley, ante, 81 N. H. 138, 142, 124 A. 70.

The plaintiff argues that, since the pleasure of riding was the consideration for Jackson's services, and as no limit was expressly placed by the defendant upon his use of the car, it could be found that, in taking the trip to North Hampton, he was collecting pay for services, and that, therefore, such use of the car was not illegal. If the evidence warranted such a finding, it would not help the...