Shefts v. Free

• Citation: 146 A. 185
• Decision Date: 20 May 1929
• Docket Number: No. 65.,65.
• Parties: SHEFTS et al. v. FREE et al.
• Court: United States State Supreme Court (New Jersey)

146 A. 185

SHEFTS et al.

v. FREE et al.

No. 65.

Court of Errors and Appeals of New Jersey.

May 20, 1929.

(Syllabus by the Court.)

Appeal from Circuit Court, Hudson County.

Suit by Benjamin Shefts, by his next friend, and another, against John J. Free and another. Judgment for defendants, and plaintiffs appeal. Affirmed.

Milberg & Milberg, of Jersey City, for appellants.

Edward Griffin, of Bayonne, for respondents.

BLACK, J. This suit was brought to recover damages for personal injuries. The infant plaintiff was injured while riding in a Ford delivery truck owned by the defendant Morris Gatkin. Negligence of the defendants is alleged. The trial resulted in a directed verdict in favor of the defendant Morris Gatkin. A voluntary nonsuit was taken by the plaintiffs as to the defendant John J. Free. The essential facts, which are not controverted, out of which the action grew, may be summarized as follows: Louis Gatkin was driving the Ford delivery truck for his father, the defendant Morris Gatkin, but this fact, i. e., the relation of father and son, is immaterial in the legal aspect of the case. The legal relation was that of master and servant.

The defendant Morris Gatkin was engaged in the butter and egg business, residing at No. 477 Jersey avenue, Jersey City, he was the owner of the Ford commercial automobile used for the delivery of his goods'. His son, Louis Gatkin, about 18 years old at the time of the accident in question, was the chauffeur, making the deliveries and intrusted with the management of the automobile. The son was a member of his father's household, receiving, in addition to his board, about $7 per week.

On the evening of September 23, 1925, the defendant told his son to take the car to the garage situated on Jersey avenue, between Railroad and Newark avenues, about four blocks from the house. On his way to the garage the son proceeded to a drug store, for medicine, located at Eighth and Grove streets, about ten blocks from the garage, passing the garage. After procuring the medicine he immediately drove along Coles street to the garage. At the intersection of Coles street and Newark avenue, on the return to the garage, a distance of about a block from the garage, the defendant's car collided with another automobile causing the injuries complained of.

The defendant's witness Louis Gatkin testified:

"I was on my way to the garage, but I didn't feel like walking to Eighth street for my medicine, so I thought I would drive over. * * *

"Q. You wanted to take this trip to the drug store and then go to the garage? A. Yes, sir.

"Q. You wanted to get that medicine before you went to the garage, is that right? A. Yes, sir."

The trial of the case resulted in a directed verdict in favor of the defendant Morris Gatkin, on the ground that the servant Louis Gatkin was engaged in an employment totally disconnected from that of his employer. This is so from the time he reached the garage to which he was to take the commercial automobile—from that moment he was engaged in an occupation upon his own behalf, entirely disconnected from that of his employer. His use of the car was at...