Muckin v. Hubbs, 8.

• Citation: 26 A.2d 286,128 N.J.L. 395
• Decision Date: 14 May 1942
• Docket Number: No. 8.,8.
• Parties: MUCKIN et al. v. HUBBS et al.
• Court: United States State Supreme Court (New Jersey)

26 A.2d 286

128 N.J.L. 395

MUCKIN et al.

v. HUBBS et al.

No. 8.

Court of Errors and Appeals of New Jersey.

May 14, 1942.

Appeal from Supreme Court.

Action by Ann Muckin and another, by their next of friend, Stephen S. Muckin, Sr., and Stephen S. Muckin, Sr. and another, individually, against Howard A. Hubbs and another for damages arising out of an automobile accident. From an adverse judgment, plaintiffs appeal. Affirmed.

Harvey G. Stevenson, of Newark, for defendant-appellee Howard A. Hubbs.

Ezra W. Karkus, of Keyport, and Theodore D. Parsons, of Red Bank, for plaintiffs-appellants.

WOLFSKEIL, Judge.

The present appeal is from a judgment of the Supreme Court on a direction for a verdict in favor of the defendant in a claim from damages arising out of an automobile accident. The suit was started against two defendants Howard A. Hubbs, owner of a garage, and William Hubbs, driver of the car, who was a brother and employee of the garage owner.

No answer was filed by William Hubbs, his liability was apparently not a subject of contention, and no judgment was entered against him. The issue on appeal concerns itself solely with the propriety of the direction for the verdict for the defendant garage owner. Some of the testimony was in conflict, but there was sufficient that was free from dispute to establish the salient and determining facts.

The vehicle involved in the accident belonged to William H. Burrowes, who was not a party to the suit and who loaned the car to William Hubbs. Burrowes stated he was going out of town for the week-end and mentioned the car required adjusting. William Hubbs said he had need of the car and at the same time would fix it. The car was left outside of the garage of Howard Hubbs in Red Bank on a Saturday, and the accident occurred on the following Monday. The car was not taken into the garage, no work was done on it, no charge was made, and there is no testimony that any of the parties requested Howard Hubbs to make repairs. William Hubbs drove the car to his home in Keyport on Saturday night. He also drove it to and from the garage on Sunday. He did not report for work at the garage on Monday, nor did he go at all to Red Bank, but remained in Keyport. He telephoned to his brother instead that he proposed to take his wife to Newark and that he had difficulty in getting the car started. Howard Hubbs informed him there was no objection of his taking the day off. The car was made to start between 8 and 9 o'clock Monday morning, after it had been pushed by a coal truck. William Hubbs then drove in the car to a tavern, spent the greater part of the day there, consuming liquor and becoming noticeably susceptible to its influence. He returned to his home about 4 o'clock in the afternoon and created an altercation that caused his wife to invoke the aid of the police. He then left his home in the car, and the police were seeking him when the accident occurred.

In this posture there is nothing to connect the defendant Howard Hubbs with the sequence of events, nor is there anything out of which to attribute liability to him. Though William Hubbs was an employee of Howard Hubbs, the car was used by William Hubbs for his personal purposes. Stress is made of the fact that when the accident happened the car was pointing in the direction of Red Bank. That...