Missell v. Hayes

• Decision Date: 10 July 1914
• Docket Number: No. 129.,129.
• Citation: 91 A. 322,86 N.J.L. 348
• Parties: MISSELL v. HAYES et al.
• Court: New Jersey Supreme Court

91 A. 322

86 N.J.L. 348

MISSELL

v. HAYES et al.

No. 129.

Court of Errors and Appeals of New Jersey.

July 10, 1914.

The Chief Justice and Kalisch, J., dissenting in part.

Appeal from Supreme Court.

Action by Florence Missell, by Frank Missell, her next friend, against J. Arthur Hayes and another. From judgment for plaintiff, defendants appeal. Affirmed.

See, also, 84 N. J. Law, 196, 85 Atl. 818.

Edmund A. Hayes, of New Brunswick (George S. Silzer, of New Brunswick, on the brief), for appellants. Fred G. Stickel, Jr., of Newark, for appellee.

WHITE, J. This is an appeal from the judgment of the Supreme Court against both defendants, who are father and son), in favor of the plaintiff (a little girl 7 years fold) upon the verdict (for $150) of a jury for in-juries received by her from being struck fey an automobile negligently operated on the public highway. The automobile was owned by the defendant Edward R. Hayes, who had purchased it for the general use of his immediate family, and it was for this purpose habitually operated by himself and his two sons (who were members of his family) sometimes with and sometimes without his express consent or direction. At the time of the accident, one of the sons, the defendant J. Arthur Hayes, was driving the automobile, and it contained also the wife and daughter of the father, who were also members of his immediate family, and two others, one a young lady guest of the daughter, and the other a young man guest of the son. It is urged that these facts are insufficient to form a basis for a finding that the son was acting as the servant of the father and within the scope of his employment as such, and that therefore the motions made in behalf of the father for a nonsuit and for the direction of a verdict in his favor should have been allowed, under the leading and well-considered case of Doran v. Thomsen, 76 N. J. Law, 754, 71 Atl. 296, 19 L. R. A. (N. S.) 335, 131 Am. St. Rep. 677.

We disagree with this view. In the Doran Case the defendant's daughter, whose negligent driving caused the accident, took his automobile out for her own pleasure and the pleasure of her three friends who accompanied her. No other members of the father's family were in the car. The only element in the case tending to show that the daughter was acting as the servant of the father was the bare fact that the father owned the automobile, which being personal property was presumably, in the absence of evidence to the contrary, in his possession or the possession of his servant at the time of the accident; possession being the badge of ownership of personal property. This presumption, however, in that case was overcome by the uncontradicted proof that in fact the automobile was not in the possession of the owner or his servant, but that, on the contrary, it was in the possession of a third party (who happened to be his daughter) who was using it for her own pleasure and the pleasure of her friends, and not upon the owner's business.

In the present case there exists a very important fact (the absence of which was commented upon in the opinion of Mr. Justice Voorhees speaking for this court in the Doran Case), which is that the automobile at the time of the accident was occupied by the father's immediate family and their guests. This fact constituted affirmative evidence that the automobile was being used in the father's affairs or business. It was within the scope of the father's business to furnish his wife and daughter, who were living with him as members of his immediate family, with outdoor recreation just the same as it was his business to furnish them with food and clothing, or to minister to their health in other ways. It cannot be said, therefore, that in this case there was no evidence of possession except a mere presumption which could be overcome by proof of inconsistent facts. Here there was affirmative proof of the fact of possession quite apart from any presumption....