Tildesley v. Joline, 25.

• Decision Date: 27 January 1944
• Docket Number: No. 25.,25.
• Citation: 131 N.J.L. 179,35 A.2d 699
• Parties: TILDESLEY v. JOLINE et al.
• Court: New Jersey Supreme Court

131 N.J.L. 179

35 A.2d 699

TILDESLEY

v.JOLINE et al.

No. 25.

Court of Errors and Appeals of New Jersey.

Jan. 27, 1944.

Appeal from Supreme Court.

Action by Hazel M. Tildesley, administratrix ad pros. of Arthur A. Tildesley, against G. Earl Joline and others for death of Arthur A. Tildesley when he was struck by an automobile. From a judgment upon a directed verdict for defendant Monmouth County Publishing Company and the Associated Press, plaintiff appeals.

Affirmed.

1. Evidence examined, and held that the conduct of the individual defendant, employe of a newspaper corporation in driving over a mile in a direction opposite to that which he should normally have taken, was such a deviation as to bar recovery against his employer on the theory of respondeat superior.

2. Held further, that as to the other corporate defendant, the individual defendant was not a servant but an independent contractor.

HEHER, J., dissenting.

Haydn Proctor, of Asbury Park, for appellant.

J. Victor Carton, of Asbury Park, for respondent Monmouth County Pub. Co.

PARKER, Justice.

This is plaintiff's appeal from a judgment in favor of the corporate defendants, based on a verdict directed by the trial court. The individual defendant, Joline, admitted liability and a judgment was entered against him which is not before us on appeal. As to the corporate defendants, the sole ground of appeal is the direction of the verdict.

The suit arises out of a lamentable accident which occurred on a bridge over Shark River, Monmouth County, in the small hours of February 27, 1942. Deceased was the bridge tender on that bridge and was struck and fatally injured by an automobile driven by defendant Joline, proceeding in a southerly direction across the bridge. The claim against the corporate defendants is based on the rule of respondeat superior. The position taken by the defendants was that the relation of master and servant was nonexistent because of deviation, that Joline at the time of the accident was on business of his own, and as to the Associated Press there was the further claim that Joline was not a servant but merely an independent contractor.

With these preliminary observations we pass to the story of the accident.

Joline was a reporter on the regular staff of a daily newspaper published in Long Branch by the defendant Monmouth County Publishing Company, which latter was under contract with the Associated Press to supply news during certain hours. He had an automobile, registered in his wife's name which he used in doing his work, and for which the Long Branch paper furnished gasoline and oil. Shortly after midnight of February 26-27 Joline was at Eatontown, about four miles west of Long Branch, at a meeting, under instructions of his paper, and received instructions by telephone to go at once to Belmar, a summer resort on the coast about eight miles south of Long Branch, and ‘cover’ the case of a ship that was burning a few miles off the coast. He left the meeting and drove to Bradley Beach, a short distance north of Belmar, parked his car, and walked south to Shark River Inlet, over which the coast road was carried on a bridge. From the bridge he observed the fire for a time, and finally at about 3:15 A. M. he concluded to return to his home, and report by telephone. It was very cold and he was so chilled that he craved some coffee and resolved to seek a lunch wagon. He went to his car, started North, but turned West (inland) to a road paralleling the coast, called Main Street, which crosses Shark River Inlet on another bridge, and continued South on that road, all the time looking for a lunch wagon, and while crossing that bridge struck and fatally injured plaintiff's intestate. He had then traveled about a mile and a half to the south, directly away from his home, which was to the north, with an object personal to himself and in no way connected with this employment. The trial court properly ruled that the deviation was a material one and that having turned directly away from his proper objective on a personal errand, the rule of respondeat superior was not applicable.

Appellant's counsel relies, for a reversal, on six cases in our courts, all of which are clearly distinguishable. In general, it is to be observed, that where the divergence from the shortest route is no more than a reasonable detour, incidental in character, there is at least a question for the jury as to abandonment of service to the master; but where, as here, the servant has for the time turned in a direction diametrically opposite to the proper one, and for his own purposes, no jury question as to the deviation is presented. The cases cited for appellant are not to the contrary. In Ferris v. McArdle, 92 N.J.L. 580, 106 A. 460, the deviation was in a sense customary, and known to the employer as a practice. In Dunne v. Hely, 104 N.J.L. 84, 140 A. 327, the truck was headed for the garage, its home, but was proceeding by an indirect route ‘a block or so out of the way’ (104 N.J.L. at page 86, 140 A. at page 328). In Axford v. Purity Bakeries Corp., 112 N.J.L. 594, 172 A. 383, the truck was in fact on its proper course, but carrying a badly...