Wirth v. Gabry, 408.
| Decision Date | 05 July 1938 |
| Docket Number | No. 408.,408. |
| Parties | WIRTH v. GABRY et al. |
| Court | New Jersey Supreme Court |
Appeal from Second District Court of Newark.
Action by Charles A. Wirth against L. Sigmund Gabry and another for damages resulting from automobile collision, in which a counterclaim was filed for injuries and property damages. From a judgment against both defendants, named defendant appeals.
Judgment against named defendant reversed.
Argued January term, 1938, before CASE, DONGES, and PORTER, JJ.
William Krueger, of Newark, for appellants. Herbert A. Kuvin, of Newark, for respondent.
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The action was to recover damages to plaintiff's automobile caused by a collision between it and the automobile of the defendant, L. Sigmund Gabry, which was being operated by his infant son, Theodore Gabry. A counterclaim was filed charging the driver of the plaintiff's car with negligence, and seeking damages for personal injuries suffered by the driver, and damages to the automobile suffered by the owner.
The testimony was that Mr. Gabry, Sr., who owned the automobile, purchased it for the benefit of his family; that the son was an infant residing in the household of his father; that at the time of the accident he was driving the car while returning from his place of employment to his home; and that his father had permitted him to use the car for that purpose.
The trial court found as a fact that the accident was caused solely by the negligence of the infant defendant. Damages were assessed against both defendants.
The owner of the automobile appeals from the judgment against him, the contention being that the proofs were that there was no agency established between the driver and himself.
We conclude that his contention in that respect is sound.
On the facts as determined by the trial court on the question of agency, we think that the court was in error in finding that the son was acting as the agent or servant of the father. On the contrary, he was on his own business and acting solely for himself. True, the car was purchased by the father for the benefit of his family, but that fact of itself does not make him liable for the tortious acts of a member of his family who was using the car on his own business, convenience or pleasure. Doran v. Thomsen, 76 N.J.L. 754, 71 A. 296, 19 L.R.A.,N. S., 335, 131 Am.St.Rep. 677. The fact that the son was a minor and using the car to go to and from his place of business, and that out of his earnings h...
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